Current state, development and peculiarities of Chinese Smart Courts

Current state, development and peculiarities of Chinese Smart Courts

28.02.2024

Qian Zhanga, Daniyar S. Dzhumalievb, Jingfei Qic

 

Current state, development and peculiarities of

Chinese Smart Courts**

DOI: 10.26350/18277942_000166

 

Summary: 1. Introduction. 2. Materials and methods. 3. Results. 3.1. Contributing factors to the development of the Smart Court system in China and the objectives of its establishment. 3.2. Stages of development of the Smart Court system in China. 4. Discussion. 5. Conclusions.

 

 

1.Introduction

 

Access to justice is one of the main indicators of a civilised society. Achieving the goal set by governments of a coherent and efficient functioning of the judiciary requires many components, ranging from court facilities and qualified staff to the ability to maximise the use of modern information storage and processing tools, which eventually provides for variability in how people can approach the court and participate in the judicial process, reasonable timeframes for the consideration of cases, a unified approach to similar situations, the possibility of predicting the commission of a repeat offence, and the prompt exchange of information between courts. In contemporary conditions, it becomes impossible to ensure that the level of functioning of the justice system corresponds to the needs of the information society using human resources alone.

Given the aforementioned, the digitalisation of the judicial system is given special attention in Kyrgyzstan today. The year 2020 was declared the year of digitalisation of the country. This process has affected all branches of government, including the judiciary. The Resolution of the Jogorku Kenesh of the Kyrgyz Republic No. 3575-VI “On approval of the State Target Programme “Development of the Judicial System of the Kyrgyz Republic for 2019-2022””[1], and the Strategic Plan on Information Technology for the Development of the Judicial System of the Kyrgyz Republic for 2019-2022[2] were adopted. To date, the tasks set by these programme documents have been largely completed. At the same time, the process of digitalisation of the judicial system continues, setting new goals and objectives for legal science. The study of previous experience should be considered as a necessary component of the organisation of the search for new solutions to ensure the effective functioning of any state institution. This study focuses on the functioning of the Smart Court system, as it was the Chinese government that acted much more decisively than the public authorities of many leading countries of the world in the search for ways to overcome crises in the field of the organisation of the administration of justice. As a result, today the Smart Court system, which has been developed and spread throughout the entire judicial system of China, is one of the most advanced and effective in the world.

Several studies by national and foreign authors have been devoted to the use of the latest technologies in the administration of justice. General analysis of the digital policy of the state in the Republic of Kyrgyzstan and its assessment, disclosure of the content of information and communication technologies and their impact on society, the prospects of the impact of digitalisation on the activities of state institutions are the content of the work of G. Aidarbekova and K. Umetov[3]. The research by B. Karypov[4] focuses on the problems of informatisation and digitalisation of law-making and analysis of national legislation in this area. Z. Sydykova[5] analysed the issues of informatisation of criminal proceedings in the Kyrgyz Republic. Issues related to the digitalisation of the judicial system of Kyrgyzstan and post-Soviet states are considered in the study by K. Smanaliev[6]. At the same time, the study of the Chinese experience is little represented in the Kyrgyzstan legal literature, while its study may be useful for the further development of e-justice in this country. Among the studies by foreign authors, it is worth noting the research by C. Shi et al.[7], in which the authors consistently cover the creation of the Chinese Smart Court system and consider the positive and possible negative consequences of the digitalisation of the justice system. A rather critical look at the functioning of Smart Courts, the conclusion of smart contracts and the future of online dispute resolution is presented in a study by J. Chaisse and J. Kirkwood[8].

The research aims to examine the development of the Smart Court system in China, assess the Chinese experience in terms of its benefits and risks, and propose criteria to guide decisions on the digitalisation of the judiciary.

 

2. Materials and Methods

 

The results presented in this study are the result of one-man research conducted by the author. To achieve the goal of the research and solve the tasks set in it, a combination of general scientific and specialised research methods in their interrelation was used. The main research methods were dialectical, historical, formal-logical method, method of analysis, method of synthesis, system-structural, logical-semantic, comparative-legal, formal-legal, abstract-logical, method of generalisation and predictive methods.

The dialectical method was used to study the social relations that existed in Chinese society, which caused the risk of a crisis in the judicial system and the need for judicial reform, resulting in the creation of the Smart Court system. Consideration of these aspects in their interrelation and unity allowed to identify the patterns and dynamics of development of both the very preconditions for judicial reform in China and the specificity of the Chinese government’s approach to this problem, consisting in the active digitalisation of the judicial system and the eventual creation of the Smart Court system.

The historical and systematisation methods were used to investigate the chronology of Chinese judicial reform in terms of the implementation of the Smart Court system. These methods were also used to examine the stated approaches of the Chinese authorities to judicial reform and digitalisation of the judiciary.

The method of analysis was used to clarify the characteristics of the existing prerequisites for the beginning of the process of active digitalisation of the judicial system, to assess the trends and current status of the Smart Court system, and to study the research on the digitalisation of the administration of justice in China. Using the synthesis method, the findings were examined in their interrelationship and general conclusions were reached.

The logical-semantic method is also used in the article to clarify the conceptual and categorical framework specifically related to the notions of digitalisation, online courts, cyber courts and the Smart Court system. Using the system-structural method, the various components of the mechanism of functioning of the Smart Court system are investigated the result of its work is comprehended, and the risks of digitalisation of the judicial system are systematised. The comparative-legal method is used to analyse approaches to the digitalisation of the justice system in different countries, thus revealing its specific aspects. The formal-legal method is used to examine the effectiveness of the Smart Court system and identify the benefits and risks associated with the digitalisation of the justice process. The predictive method was used to study the consequences of the digitalisation of the justice system and the impact of artificial intelligence on the functioning of the judicial system. The abstract-logical method was the tool used to explore theoretical approaches to the digitalisation of the justice system and to determine its impact on access to justice. The methods of generalisation, analysis and synthesis were used to determine the place and role of digitalisation and the Smart Court system in the justice delivery system. A generalisation method was used to make recommendations on the use of the Chinese experience of Smart Court.

The information and empirical basis of the study were obtained by researching the official reports of the Supreme People’s Court of China on the progress of judicial reform. The empirical basis of the study was also the research works of leading legal scholars.

 

3. Results

 

3.1 Contributing factors to the development of the Smart Court system in China and the objectives of its establishment

 

The latest technologies have long since become an integral part of life in modern society. Artificial intelligence is firmly embedded in spheres related to fine arts, copywriting, information gathering, medicine and many others. At the present stage, it is not so much a question of using or not using the capabilities of artificial intelligence, but a question of how much mankind is ready to allow its influence to spread to the sphere of making vital decisions. One such sphere is undoubtedly the sphere of justice. To a greater or lesser extent, informatisation and automation are already firmly established not only in the most advanced jurisdictions of the world, such as the UK, Canada, and the USA but also in the post-Soviet countries[9]. A significant acceleration of the process of implementation of the so-called “e-justice” or “e-court” systems was also associated with the COVID-19 pandemic. At the same time, it is China that has achieved a significantly higher performance than most countries in organising the functioning of e-justice. Today, China’s Smart Court system confidently takes a leading place in the global system of digitalisation of the functioning of public authorities.

A full and comprehensive study of the functioning of China’s Smart Justice system requires, first of all, an examination of the factors that led to its development at a fundamentally different pace than in most countries of the world, including the most technologically advanced ones. Among the motivating factors for the development of the Smart Court system in China are both objective and subjective factors. These factors are inherent in virtually all judicial systems in the world, but in China, as will be shown below, they have reached a scale that forced the authorities to take radical measures.

First of all, the problem of significant overloading of courts should be mentioned. It is also the basic prerequisite for all other problems, such as a corrupt judicial system, complicated access to justice, and lack of transparency in the functioning of the judicial system. The problem of disproportionate burden on the courts exists in many countries of the world and various legal instruments are used to solve it, from stimulating the development of alternative dispute resolution to increasing court costs, but, firstly, these mechanisms do not allow relief the judicial system to such an extent that it would produce any tangible result, and, secondly, it was in China that the burden on the judicial system acquired at some point threatening proportions, and then, which became a distinctive feature of the Chinese judicial reform, the authorities of the People’s Republic of China. It should be noted that this problem still persists, so the Chinese government is making further efforts to resolve it. From January 2020 to January 2022, China carried out a two-year judicial reform to separate traditional and simplified sentences in grassroots courts, intellectual property courts and Internet courts in some regions. Pilot projects were conducted mainly around optimizing judicial confirmation procedures, recommending the connection between non-litigation procedures and litigation procedures; improving small claims procedural rules; expanding the scope of application of the sole-appointment system and improving electronic litigation rules.

The high population of the country, coupled with its high level of commercial activity, including e-commerce, which inevitably led to a large number of litigations, was the cause of a serious overload-induced crisis in the functioning of the Chinese judicial system, which risked its complete collapse. This is highlighted in the legal literature when it is pointed out that the integration of information technology into Chinese life has had both positive and negative effects. It is noted that digitalisation has not only affected areas such as commerce and services but has also led to cases of rights violations such as intellectual property infringement, identity theft, and other types of online offences and the eventual emergence of cybercrime as a distinct phenomenon. With the rise of online offences and cybercrime, the need for a robust online court system to quickly resolve the growing number of disputes in the online community has also increased [10].

Speaking of the statistical characterisation of the situation, in their study on the development of China’s Smart Courts system, C. Shi et al.7 provide data characterising the workload of Chinese court judges, which shows that in 2015, 16.714 million court cases were pending before the courts in China, 27.3 times more than in 1978 when China began to open up to the world. Civil and commercial disputes alone accounted for 11.045 million cases, 34.7 times more than in 1978. Despite this increase in the number of cases, the number of judges only increased 3.27 times over the same period: there were a total of 196 thousand judges in 2015, compared to 60 thousand judges in 1981. This mismatch between the number of cases and the number of judges has made the burden on the latter disproportionate.

As mentioned above, the Chinese authorities have taken a fundamentally different approach from Western countries in addressing the problem of court congestion, namely the transformation of the judiciary through the use of technological innovation and information technology. This approach was seen as being in line with the traditional values of the judiciary and was expected to address the other problems identified, promote transparency, efficiency, and a people-centred approach, in particular by simplifying both the procedure for accessing the courts and participation in the judicial process. The convenience offered by the use of state-of-the-art technology was also predicted to reduce the high costs associated with accessing the justice system, given the ever-increasing number of Internet users in China.

Another significant problem that the Smart Court system was designed to address was overcoming the corruption of the judiciary and, as a consequence, increasing public confidence in it. The technological transformation was aimed at making the courts more accessible and open to the public at large. Z. Qiang, President of the Supreme People’s Court of China, called on Chinese courts to implement an “open judicial system”, which would allow Chinese citizens to learn more about the functioning of the national justice system through the use of tools such as the ability to follow court proceedings online in real-time and ensure that court judgements are freely available[11]. This emphasis on openness contrasts with Western developments in court case management, which often prioritise domestic judicial reforms over court accessibility. Furthermore, the Smart Court system was to unify Chinese courts into a single network, which would provide instant access to all previous court decisions. This approach was to lead to the unification of judicial practice in similar categories of cases, which was not only to improve the quality of judicial decisions but also to increase public confidence in the judiciary.

Regarding the prerequisites for the creation of a smart court system, it is also necessary to highlight the problem of improving the process of information processing. The whole process of administration of justice is reduced to the receipt and processing of information, regardless of the type of proceedings. The main load in this process falls on the judge. It should also be considered that the information provided to the court by the parties may also change in the course of the judicial process, which requires repeated processing. The judgement that will be made as a result of the case is also information that is based on the case file and earlier decisions and is itself also background information for future decisions[12]. Thus, much of the time spent by a judge in hearing a case involves analysing information. However, as noted in the legal literature, not all information related to a case requires personalised assessment. A significant part of the situations that become the subject of consideration in the course of court proceedings have sufficiently average characteristics that certain algorithms can be used for its processing. This is confirmed by the fact that courts often issue judgements in absentia and make declarations of inadmissibility. Thus, many cases can be decided based on a simple assessment, often without even a court hearing. Thus, only a small part of the judiciary’s workload involves complex and contentious issues[13].

As for conventionally patterned cases, the processing of information on these cases can be entrusted to artificial intelligence-based programs. Thus, in developing the Smart Court system, one of the objectives was to automate various research functions to assist judges in handling cases and making decisions. By analysing such cases using big data, the system had to generate appropriate principles for standards of evidence, verify and compare these standards, and exclude defective and illegal evidence. This approach was expected to fulfil several objectives:

-                     to reduce the information burden on judges;

-                     to eliminate the influence of the human factor on decision-making (which would help to prevent corruption within the judiciary and increase public confidence in it);

-                     to ensure that previous decisions were considered, which would contribute to the uniformity of judicial practice in similar cases.

In this way, it was expected that the application of artificial intelligence in the administration of justice would streamline procedures, allowing judges to focus on complex problems, and would lead to increased judicial efficiency[14].

Objective factors contributing to the acceleration and expansion of the digitalisation of China’s judicial system included the COVID-19 pandemic. Just as the problem of court congestion made access to justice much more difficult, quarantine measures made physical access to courts impossible, with ultimately similar consequences. The Smart Court system, as will be shown later, proved effective in quarantine conditions, and helped prevent massive violations of the right to judicial defence. Considering the Smart Court system in the context of access to justice, it is the quarantine period that is particularly illustrative, as during this time the use of the Smart Court system allowed for an increase in the number of online hearings and a reduction in the number of physical ones. Between 3 February and 31 March 2020, 706 thousand applications were accepted in courts across the country and 150 thousand online court hearings were held (an increase of 453.3% in 2019). Special mobile apps have been developed to ensure access to courts for the public, especially in areas affected by lockdowns and social restrictions due to the COVID-19 pandemic[15].

Thus, the main factor that prompted the decision to create the Smart Court system was the excessive burden on the judiciary, which became the underlying factor for the related problems of corruption and increased difficulty in accessing justice. In addition, the isolation of individual courts led to a lack of uniformity of jurisprudence. The Smart Court system was designed to address the burden on the courts, improve access to justice, improve the decision-making process, and improve the quality of the decisions themselves through better information processing.

 

3.2 Stages of development of the Smart Court system in China

 

Consideration of the stages of formation of the Smart Court system is an important point, the study of which is necessary to understand the organisation of its functioning. The analysis of the legal literature suggests that the current Smart Court system is the result of a step-by-step transformation of the Chinese judicial system, which began in the 1990s and continues today. Of course, the following timelines and stages of transformation should be considered conditional, as the ever-increasing speed of development of the latest technologies means that such transformation will be more or less permanent in the coming decades.

The first stage covers the seven years from 1996 to 2003, namely from the “National Conference on Judicial Communication and Computers” to the completion of the digitisation of court files (previously usually handwritten) and the connection of all courts to the unified network. Thus, the Supreme People’s Court ordered all courts in the country to digitise their files using computers by the end of 2001 and to establish a nationwide network connecting all courts by the end of 2003. This marked a significant shift in court organisation and communication, improving the efficiency and effectiveness of court administration7. Of course, this stage is only indirectly related to the Smart Court system itself, but it was the beginning of the digitalisation of the Chinese judiciary.

Second stage was the transformation of China’s judicial system covers nine years from 2004 to 2013. The main outcome of this phase was the establishment of an online hearing mechanism, which included the use of computer and internet technology to prepare hearing cases and facilitate communication during the court hearings themselves. Notable court cases from this period include, firstly, a 2004 divorce case in which a local court in Guangdong Province accepted a divorce petition involving a couple whose parties were domiciled in China and Canada, respectively. The court’s communication with the defendant, who resided abroad, including the exchange of documents, was conducted by the court using email[16]. This was one of the first examples of the use of Internet technology to facilitate litigation. A second notable example occurred in 2005, when a local court in Guizhou province used Tencent QQ, an online instant messaging tool, to handle a divorce case in which one of the parties was unable to be physically present in court. Similar mechanisms have been used for cases involving migrant workers. A local court in Guizhou has also used these technologies to handle summary criminal cases7.

The progress of online hearings was recorded using audio and video recording technology. This phase of transformation was largely a response to the goals set out in the Second five-year reform program for the People’s Courts(2004-2008)[17], which, among other things, emphasised the need for an open judicial system17. As a result, court hearings were broadcast live to the general public. In September 2009, the Beijing Supreme People’s Court launched a website with live streaming of court hearings, allowing Chinese citizens to watch court hearings that took place in any court in the Beijing area. In March 2010, the Supreme People’s Court of Henan Province also held its first real-time hearing to enhance the transparency of the justice system. Thus, at the end of the second phase, the digitalisation of China’s judicial system has reached the level of online broadcasting of hearings, thus moving closer to realising the goal of openness in the operation of the judicial process and increasing the trust and awareness of the general public in the administration of justice.

In the third stage of the Smart Court system, while the above two periods can be characterised as preparatory, in 2014, Chinese courts began to implement the Smart Court initiative itself, using advanced technology to improve the conduct of trials. The aim was to create an open, transparent, and user-friendly court system that would enhance public confidence in the judiciary and promote understanding of the administration of justice.

The Opinions of the Supreme People’s Court No. 3 “On deepening the reform of People’s Courts in all respects – The fourth five-year reform plan of the People’s Courts (2014-2018)”[18] stated that the goal of building a socialist judicial system with Chinese characteristics is to use modern information technology to develop an open, dynamic, transparent, and user-friendly judicial mechanism. Emphasis was placed on the fact that this would help improve public understanding, trust, and control of the judicial system. As of the end of 2015, three main platforms had been established: one for the judicial process, one for court documents, and one for executive information from the People’s Court. These platforms were designed as a holistic system containing complete information and with a user-friendly interface and functionality. The overall goal is to create a comprehensive and scientifically structured judicial mechanism that prioritises the needs of the people18.

By 2017, it was determined that modern judicial reform requires the establishment of a specific technological system. The latest Five-Year Plan for the Reform of People’s Courts (2019-2023) identified the creation of a Smart Court as one of the key goals of justice reform. Specific measures included technological innovations such as improving AI-based voice-to-text methods during hearings and intelligent case management support systems. That said, by 2017, some innovations had already been introduced in Chinese courts. One example was the Hangzhou court, which used a static robot to enable online legal aid, electronic filing of documents, specialised virtual courtrooms, voice recognition technology and China’s first internet court to resolve online disputes[19]. As mentioned above, to facilitate access to the Smart Court, online platforms were developed to serve litigants and provide information on court judgements. These platforms allowed lawyers to receive updates on the progress of their cases and provided comprehensive information to navigate the litigation process. The platforms also included extensive databases of Chinese law and legal practice. The data from these platforms was utilised in the artificial intelligence (AI) equipped court systems of local courts. This ensured consistency of decisions by automatically providing judges with similar cases, relevant laws, rulings and judicial interpretations of rules and decisions.

Along with the development of online platforms, internet courts were established. These courts used web-based platforms for court proceedings and applied technologies such as facial recognition and machine learning for identity verification and decision-making. Blockchain technology was used to preserve evidence, and electronic signatures and time stamps were accepted as admissible evidence. These reforms were aimed at minimising delays in court proceedings. For example, the Hangzhou Internet Court reduced the average hearing time per case by 65% compared to in-person hearings in the previous year. According to the Supreme People’s Court of China, by November 2017, up to 3523 local courts and 9277 tribunals across the country had been included in the common network, ensuring equal access to information for all judicial officials during court proceedings. It was also noted that China’s national legal document database is the largest in the world, containing data on 122 million court cases, more than 6 million court records and 240 thousand court personnel files.

In January 2018, the Ningbo Intermediate People’s Court in Zhejiang Province launched the “Ning Bo Mobile Micro Court” app, which enables the entire judicial process to be conducted online, including case registration, service of legal documents, mediation, evidence exchange, court hearings and enforcement. Since the launch of the app, some 70 thousand cases have been filed, resulting in lower court costs and increased satisfaction of the parties involved. Based on the success of the regional version in Ningbo, the Supreme People’s Court has developed a national version of the Mobile Micro Court app, which has been promoted in other parts of the country since August 2018. By 31 March 2020, the total number of users of the app had reached 1.39 million, with 390 thousand new users registered in March alone, up 86.78% from February. In addition, 437 thousand new cases were registered on the app in March, an increase of 287% over February. Notably, 72.63% of applicants were able to complete the submission process in less than 15 minutes.

In May 2020, Mr. J. Xu, Director of the PNC Information Centre, highlighted that all 32 Supreme People’s Courts in China have started using the Mobile Micro-Court app to enable cross-regional case filing and litigation during the pandemic[20]. Thus, the introduction of information technology in the judicial system has led to the emergence of concepts such as cyber courts, electronic courts, or Internet courts, which encompasses courts in which all or parts of the judicial process are conducted online using the Internet[21]. C. Rocha et al.[22] identify six main aspects of the functioning of such courts: case management system, technology serving courtrooms, legal repository, electronic monitoring, online sessions, and the use of artificial intelligence in the administration of justice.

However, it would be wrong to identify e-courts with the Smart Court system, as they are only one of its components (Figure 1). The Smart Court system itself is defined in the legal literature as a form of organisation, construction, operation and management of a people’s court that relies on modern artificial intelligence, is oriented towards fairness for people and fair justice, adheres to the integration of judicial laws, institutional reform and technological reform, supports litigation, court services and trial management with a high degree of information, and realises full online processing of cases, full disclosure of legal processes and comprehensive intellectual services[23]. As for the third stage, it should also be noted that its implementation was the moment when the digitalisation of China’s judicial system reached a fundamentally different level, and the reform of the judicial system itself took on a character significantly different from the approaches to solving the issue of the crisis of judicial systems adopted in most countries of the world, focusing on the creation of a socialist judicial system with Chinese specifics.

 

 

Figure 1. Schematic diagram of the operation of the Smart Court system[24]

 

It is untimely to discuss the completion of the Smart Court system. Today, the system is in its conditional fourth stage of development. Thus, at the first plenary meeting of the Steering Group on Network Security and Information in 2022, Z. Qiang stressed the need to promote the construction of smart courts, modernise the judicial system and develop judicial capacity, which aims to improve the enforcement of judgments and promote socio-economic development[25]. Several documents were discussed during the meeting, including a five-year development plan (2022-2026) on digitisation of people’s courts and guidelines on data security. Reports on the progress made in realising the unified dispute resolution and court services system, the overall level of court data and the smart court brain were also presented[26].

While attending the Eighth National Judicial Conference on Network Security and Information Technology held on 30 November 2022, Z. Qiang stressed the importance of promoting the development of smart courts and online judicial work to upgrade the judicial system and provide reliable judicial services on the road to China’s modernisation24. Z. Qiang noted that at present, the Smart Court has successfully resolved all court cases online, providing an open and lawful process along with comprehensive intelligent services. This, combined with the Internet-based judicial system, has played a significant role in promoting the country’s qualitative development and enhancing the international standing of China’s judicial system.

It should be noted that the 20th National Congress of the CPC has set ambitious plans to turn China into a cyber-power and accelerate the construction of a fair, efficient, and authoritative socialist judicial system, which should be facilitated by the further development of smart court construction, internet-based judicial system25. It should be emphasised that the speed of development of the latest technologies, which increases every year, will constantly open up new opportunities both for improving the Smart Court system and for applying fundamentally new approaches to its construction, so the discussion on the Smart Court system is unlikely to be completed shortly.

 

4. Discussion

 

In general, the processes of digitalisation of the judiciary and the administration of justice can be assessed as a positive phenomenon, allowing to solve several problems, in particular concerning the problem of overburdened judges, access to justice, transparency of the judicial system, reducing corruption and increasing public confidence in it. The same position is held by a significant part of researchers. Thus, the inalienability of information technologies in the life of modern society is emphasised, including as tools to “simplify and facilitate the building of social relationships”[27], and the positive impact of the use of modern technologies on the functioning of state structures to address the problem of distrust of citizens in state and legal institutions is also noted[28]. At the same time, there are several risks of various kinds that must be considered when introducing digital technologies into the functioning of the judiciary. These risks can be divided into four groups: technical, organisational, social, and political. Regarding the possibility of ensuring security in the process of widespread introduction of the latest technologies into the judicial system, as in the case of the prerequisites for the creation of the Smart Court system, it is possible to assess such observations both in general and in the context of Chinese realities.

In terms of technical risks, there are two components. Thus, the first point to be highlighted when considering the benefits and risks of the digitalisation of the justice system is the technical aspects of the extent to which the latest technologies and AI are integrated into the functioning of the judicial system and, most importantly, decision-making. In this sense, it is necessary to distinguish between the simple automation of certain processes and the transfer to AI of purely technical functions in the field of court administration, archiving of materials, and ensuring communication between participants in the judicial process, and the introduction of AI into the decision-making process itself. Conventionally, this can be referred to as digitalisation at different levels: technical and intellectual digitalisation.

Considering the technical side of the issue, the advantages of digitalisation include the clarity of algorithms, the large coverage of information, together with the high speed of its processing, many times exceeding human capabilities, as well as the absence of the personal factor, which allows to talk about the possibility of using the latest technologies to find the most fair and unbiased versions of judicial decisions, taking into account all the surrounding circumstances and all previous approaches and precedents, which makes it possible to use the latest technologies to find the most fair and unbiased versions of judicial decisions. Thus, acceleration of dispute resolution, cost savings due to the transfer of the judicial process into online mode, the possibility for the participants of the process to take part in it from anywhere in the world, ensuring the enforcement of court decisions through access to all possible registers – all this is only a small part of the advantages of the development of the Smart Court system.

Among the simplest technical risks are the possibility of technical connectivity problems and the possibility of disruptions during online hearings that could delay the entire process, as well as the possibility of information loss due to fixing failures or file corruption. A much greater challenge is the type of technology used in intelligent court systems. In addition to the risks of hacker attacks, protection of personal information and other traditional network risks, in this case, attention should be paid to the degree of interference of software code in the decision-making process itself. On the one hand, the latter’s ability to cover and analyse volumes of information impossible for a human being allows for a high degree of consideration of all factors and a high degree of probability of predicting situations. On the other hand, such a fully mechanised approach would to a certain extent contradict the very nature of human relations, when a judge considers not only the formal but also the psycho-emotional side of an issue when deciding. This position is generally supported in the legal literature, and the very question regarding the legal personality of the software code itself is one of the most complex and controversial issues regarding the introduction of the latest technologies in legal processes. Thus, R.R. Khuzin[29] draws attention to the fact that the development of decentralised registry technology has led to the fact that some types of software have obtained a new legal status, which the legislation does not regulate.

The use of AI in the criminal justice system is of particular concern, as automated decisions, while enhancing the technical efficiency of the justice process, can be an obstacle to judges being able to elaborate on their position. AI-generated decisions made without the involvement of a human judge may be unclear and difficult to understand, as well as fail to consider the subjective side of the wrongful act. For example, X. Chen[30] draws attention to the fact that adjudication in criminal cases requires consideration of an average of 200 different factors, but, in addition, many exceptions do not fall within the scope of mathematical calculations, in particular, when it comes to exemption from punishment even in the presence of guilt, the application of probation, suspension of sentence, the need to “distinguish between the sentence and the circumstances of sentencing”. In a global sense, the introduction of emerging technologies such as AI into the justice system raises questions about the values of justice and the role of judges. Here, while the use of AI in the administration of justice has been welcomed and its learning capabilities recognised, the question of giving AI the final decision-making power remains debatable and it is argued that the role of the judge in this process should remain a priority[31]. Also, the legal literature highlights the lack of flexibility of AI in decision-making, which can be a source of dissatisfaction in society and thus can also be categorised as a potential risk[32]. M. Corrado[33] draws attention to the need to critically evaluate the decisions made based on AI opinion, because, as the researcher points out, it may not have the intuition that judges acquire with experience, as well as lacks knowledge of the specific social and political environment.

The social risks of digitalisation are that, in attempting a mass transition to e-court capabilities, one cannot ignore the digital divide that somehow exists in any society. In this regard, some participants in the process (here it is advisable to speak about the parties or one of them, or witnesses, since the relevant competence of the representatives of the judiciary, as well as lawyers, maybe a condition of their professional training) may have difficulties in navigating online platforms or relevant applications. The Chinese experience of implementing the Smart Court system confirms this thesis. As noted in the legal literature, this was a particularly problematic issue in the implementation of the Smart Court system in China, given that a significant proportion of the country’s population has difficulty accessing internet services7. The Chinese government has successfully completed this task. According to the China Internet Network Information Center[34], the country’s Internet penetration rate in 2019 was 61.2%. In 2022, the country’s Internet penetration rate reached 74.4%. The Internet penetration rate increased by 13.2% in three years34. Thus, any stage of the process of digitalisation of courts in Kyrgyzstan should be preceded by a sociological study of the readiness and capacity of the population to accept the forthcoming innovations. The maximum possible reduction of the digital divide should be included in relevant digitalisation programmes, as only such an approach can ensure the active inclusion of the population in the use of e-court systems and provide a real breakthrough in improving access to justice through the digitalisation of the judiciary.

Z.D. Sydykova5 draws attention to another aspect that can be considered in the context of the social risks (and benefits) of digitalisation. This is about the suitability of virtual approaches for the administration of justice in cases involving persons with disabilities (in particular, those with hearing, vision, or speech impairments). Certainly, the authors of this study should agree with the researcher that for this category of persons, whatever status they have in the judicial process, the possibility of participation, for example, in online sessions can be not only complicated but also completely excluded (which is a violation of the principle of access to justice). On the other hand, there is another category of persons with disabilities, for whom e-justice, on the contrary, can significantly facilitate access (if, for example, there is a restriction on independent mobility). Digitisation also makes it possible to translate court decisions into audio format, which, in particular, enhances the possibility for visually impaired persons to read them. This emphasises once again the role of the judge in the judicial process, as it is the judge who remains the person to whom the law places the obligation to consider all the factors that take place in each particular process.

While the social problems of e-justice are among the most common, they are also among the easiest to solve. The means to achieve the goal in this case are government digital literacy programmes and technical issues of Internet access throughout the country. Organisational risks are similar to social risks. This refers primarily to the fact that much of the apprehension about the use of the latest technologies in the operation of the Smart Court system stems from potential problems and discrepancies between official statements and the opinions of judges, lawyers and legal academics. For example, as shown above, the functioning of e-justice is praised in official reports. At the same time, the implementation of digitalisation of the justice system requires the assessment of several organisational criteria, which may include, inter alia, court staffing issues and the existence of an appropriate legislative framework.

This thesis is confirmed in the legal literature. Thus, back in 2013, considering the prospects for the introduction of e-justice, Doctor of Law M.A. Alenov[35] noted that for the legal reality of the post-Soviet space, e-justice is a phenomenon, which necessitates an in-depth study of this issue, including the existing experience. Speaking about the legal regulation of issues related to digital transformation, G. Ryspaeva[36] draws attention to the continuity of this process, and the need to consider the intersectoral nature of digital technologies, overcoming existing legal barriers. The problems voiced by the researcher do exist and should not be ignored. The formation of the legal framework is characterised by a certain lag from the emerging objective realities, which is associated with the peculiarities of the organisation of the legislative process. At the same time, when it comes to digitalisation, the law-making procedure itself should also be subject to the impact of the latest technologies. The legal literature also notes the problem of judicial personnel in grassroots and provincial courts. Since most young and ambitious lawyers use working in such courts only as a career steppingstone, the staffing of grassroots courts appears to be composed of older judges who, despite their experience, often find it difficult to master the technical details of Smart Court operation23.

Concerns regarding the fairness of online court proceedings exist due to ambiguous statutory rules. Judges are entitled to rule that failure to participate in an online hearing without good cause may constitute a refusal to appear. However, the interpretation of such rules may vary from jurisdiction to jurisdiction. Ambiguity in the rules may result in unnecessary time and resources for judges, parties, and lawyers. The political risks of the digitalisation of the judiciary are related, on the one hand, to the fact that such digitalisation provides opportunities for global control and access to all personal data and resources in the face of the objective factor of the remaining possibility of making decisions based on interests other than those of the law. The Chinese experience in this sense remains quite illustrative. In support of this thesis, it is possible to cite the position of G.G. Zheng[37], who draws attention to the fact that while online dispute resolution and online courts have become a global phenomenon, China remains unique in its way of building the system of Smart Courts. The nature of this uniqueness is that China’s Smart Courts are an integral part of China’s broader strategy to capitalise on the new opportunities offered by the Information and Communication Technology (ICT) revolution. Thus, the introduction of advanced ICT into the judicial system is not an initiative of the courts themselves, but the result of deliberate policies on the part of the Party and the state. Thus, when speaking about the nature of smart courts in China, G.G. Zheng37 draws attention to two fundamental points. The first is that Chinese courts are using ICTs, especially artificial intelligence, both to enhance hierarchical control and to improve the formal quality of the law. The second is that “internet courts” are set up to resolve disputes arising from online transactions, rather than to serve as pilot courts with general implications for the shape of future courts in China. Therefore, by boldly experimenting with new technologies (such as blockchains) in the judicial process, Internet courts in China are also responsible for developing legal doctrines in cases under their jurisdiction. Thus, the case of China demonstrates the profound interaction between law and technology. Based on the aforementioned, the researcher concludes that the positive or negative nature of the consequences of the implementation of the smart court system will be largely driven by human factors or, more globally, political objectives.

Referring to the specificity of China’s Smart Courts, S. Papagianneas[38] concludes that their implementation has a specific goal that goes beyond simply improving court services and access to justice and also includes making courts more accountable to the authorities. Automation and digitalisation thus play a crucial role in the institutionalisation and systematisation of political oversight. It is also necessary to consider the fact that the involvement of legal technology companies in the justice system carries risks of commercialisation and outsourcing of court services. The learnability of AI or the possibility of adding certain data to the algorithms creates opportunities to influence the final software product in case the developer is politically motivated.

 

5. Conclusions

 

Summarising the aforesaid, it is possible to propose a definition of the Smart Court system as a form of organisation of management of the Chinese People’s Courts, including the process of administration of justice, based on the use of the latest technologies, which is in its essence a single system task, in which the main factors of its successful solution are the factor of technical equipment and the factor of awareness (technical preparedness) of the user. China’s Smart Court system aims to provide fast and fair court services to a large number of people in a rapidly growing economy, ensure a uniform approach to resolving similar cases across the country, create an environment of openness in the functioning of the judicial system and ultimately improve access to justice. Turning to new technologies as a means of resolving the crisis in the middle of the judicial system and creating the Smart Court system became part of the national strategy of digitalisation of the public administration system. Today, the Smart Court system utilises various new technologies supported by artificial intelligence, dealing with big data and, to some extent, blockchain. Starting with the digitisation of all court documents and court administration tasks, the digitalisation of the judiciary has gradually expanded to include court proceedings over the Internet, allowing courts more flexibility to deal with situations where parties cannot physically appear in court, and significant progress has been made in the level of information processing, which not only saves judges’ time in preparing court decisions but also ensures that earlier positions of courts regarding similar cases are fully considered.

However, various challenges include issues related to automated solutions, digital divide issues, judicial independence, and data privacy and protection. Conventionally, these challenges can be categorised into four groups: technical, organisational, social, and political. While the political factors discussed in this article relate specifically to the Smart Court system and will be specific to the digitalisation of the judiciary in other countries, the technical, organisational, and social risks will be similar. When considering approaches to deepening the digitalisation of the judiciary in Kyrgyzstan, it should be borne in mind that the solution to the problems caused by these risks will require not only organisational efforts but also funding from the state budget, and therefore should be carefully analysed when deciding on each subsequent stage of the digitalisation of the judiciary. Thus, when deciding on each next stage of the digitalisation of the judicial system, measures should be taken to ensure the stable functioning of the e-court, minimise the influence of the human factor on the functioning of the code both in its operation and the process of its creation, assert the independence of judges in making decisions and the possibility of correcting decisions made with the help of AI, take measures to improve the level of technical literacy of court staff, take into account the level of digital literacy of the population, and take measures to improve the level of digital literacy of court staff.

 

Abstract:The problems of access to justice and the burden on the judiciary remain one of the priorities of judicial reforms in different jurisdictions today. The causes of the crisis in the functioning of the judicial system are characterised by significant similarities in most countries of the world, but the approach to solving such a crisis, applied in the implementation of judicial reform in China, was truly a breakthrough in nature. This fact and the fact that the speed of development of the latest technologies determines the need to discuss the digitalisation of courts as an ongoing process, defining the necessity of the study of foreign experience. The research aims to examine the establishment of the Smart Court system in China and determine, based on Chinese experience, the advantages, and risks of the digitalisation of the court system. Various methods of scientific research (analysis, synthesis, comparative-legal, prognostic, historical) are used to study the prerequisites of creation and the process of formation of the Chinese Smart Court system characteristic of the Chinese judicial system, to identify its main stages, to determine the positive and negative consequences of the introduction of the Smart Court system for the implementation of justice and its impact on the functioning of the justice system. Based on the study, risks of technical, organisational, social, and political nature are highlighted. The risks specific to the Chinese justice system are highlighted. Assessments of the digitalisation of the judicial system expressed in the legal literature are studied. It is proposed to distinguish between technical and intellectual levels of digitalisation. As a result of the study, the author defines the criteria that can be used in practice when making decisions in the field of digitalisation of the judicial system: minimising the influence of the human factor on the functioning of the code, independence of judges in decision-making, including from the opinion of artificial intelligence, taking measures to reduce the digital divide.

Keywords:judiciary, access to justice, e-justice, digitalisation, online justice, cyber courts


aLuoyang Normal University, People’s Republic of China; Kyrgyz National University named after Jusup Balasagyn, Kyrgyz Republic. qianzhang500@gmail.com.

bKyrgyz National University named after Jusup Balasagyn, Kyrgyz Republic. Daniyar.S.D@outlook.com;

cKyrgyz National University named after Jusup Balasagyn, Kyrgyz Republic.JingFeiQi@hotmail.com

** Il contributo è stato sottoposto a double blind peer review.

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Zhang Qian



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