Smart Courts: The
Expansion of Technology in the Chinese Judicial System
Jingjing Hao11∗ Assistant Professor,
Shenzhen University (Shenzhen, China), Doctor of Procedural Law (Wuhan
University), Master of Procedural Law (Wuhan University), B.A. (Wuhan
University). The author can be reached at fxyhjj@szu.edu.cn.,
Meng Chen22∗∗ Corresponding author. Assistant
Professor, Shenzhen University (Shenzhen, China), S.J.D. (University
of Wisconsin Madison), LLM (UW-Madison), Master of International Law
(University of International Business and Economics), B.A. (Sun
Yat-sen University). The author can be reached atmchen63@szu.edu.cn. This
article is supported by Shenzhen University Fund: (“Research on
Procedural Jurisprudence of Information Courts Construction”
860-000002110173 and “Dispute resolution system under the Belt and
Road Initiative” 860-000002110168)∗
In recent Covid-19 outbreak Chinese informationized judicial system
provides reliable and efficient alternative platform for disputes
resolution and judicatory justice. This article presents a comprehensive
and in-depth examination of the Chinese judicial system’s efforts and
achievements in informatizing the judicial process. This article
analyses and illustrates Chinese courts’ approach to constructing smart
courts based on a large volume of various judicial data collected
through numerous platforms established under the lead of the SPC and the
application of advanced information technologies represented by AI
technology. Then, this article demonstrates the various intelligent
instruments and functions that information technologies foster in
judicial activities. In addition, this article is supplemented with
extensive practical statistics and evidence to evaluate the
effectiveness of Chinese smart courts. After exploring the Chinese
judicial system’s motive for promoting informatization in internal
judicial reform, this article exposes the challenges and pitfalls that
will accompany the current process of judicial informatization.
Key words: Judicial informatization; Chinese judicial system;
Information technology; AI; Efficiency of judicial process
Introduction
Modernization will be impossible without informatization. The judicial
informatization or construction of smart courts is the first step for
China to move towards judicial modernization. The Chinese Supreme People
Court (SPC) defined a smart court as constructing, operating and
managing the whole judicial process by adopting modern artificial
intelligence (AI) technology and informatizing judicial proceedings,
case management, and judicial services. A smart court closely integrates
AI with practical judicial demands and can serve as an important engine
and massive power to promote Chinese judicial reform. In recent Covid-19
outbreak Chinese informationized judicial system provide reliable and
efficient alternative platform for disputes resolution and judicatory
justice.
This article presents a comprehensive and in-depth examination of the
Chinese judicial system’s efforts and achievements in informatizing the
judicial process. This article analyses and illustrates Chinese courts’
approach to constructing smart courts based on a large volume of various
judicial data collected through numerous platforms established under the
lead of the SPC and the application of advanced information technologies
represented by AI. Then, this article demonstrates the various
intelligent instruments and functions that information technologies
foster in judicial activities. In addition, this article is supplemented
with extensive practical statistics and evidence to evaluate the
effectiveness of Chinese smart courts. After exploring the Chinese
judicial system’s motive for promoting informatization in internal
judicial reform, this article exposes the challenges and pitfalls that
will accompany the vigorous process of Chinese judicial informatization.
Construction of Chinese smart courts
Technology revolution boosts smart courts
In Mainland China, the construction of smart courts has undergone
equipment updating and technology iterations, gradually entering the 3.0
era of judicial informatization. One important feature of this stage is
the all-round and full-process application of information technologies
such as AI and deep learning. AI is not a new concept: at the Dartmouth
Conference in 1956, “to make machines act in this way, that the way
humans do”, was come up with by an American computer scientist John
McCarthy and his colleagues, which is regarded as AI. (Tencent Research
Institute, 2017)
In the next 60 years, AI underwent “three ups and two downs”. (Li,
2017) Researchers have been working unremittingly to develop AI that has
mastered the thinking and reasoning abilities of humans. Although AI has
intrigued the public, and human science and technology has been
developing rapidly, there were few breakthroughs in the application of
AI in the decades after the end of World War II. This barrier can be
attributed to the two major pain points existing in information
technology of that time: “data” and “hardware”. (Li, 2017) If we
compare AI to a heart, it is born with two deficiencies. One is that the
quantity of data that could be allocated was too small: there was an
“insufficient supply of blood”. (Li, 2017) The other was that
insufficient hardware resulted in the lack of computing power to resolve
complicated problems: the “heart had insufficient strength”. (Li,
2017) The two problems could not be solved until the Internet was
extensively popularized, stemming the explosive growth of data, and the
computing capability of computers reached a sufficient level, having
doubled annually; at this point, the computing fabric experienced a
revolutionary change. (Li, 2017)
The increasing accumulation of data and rapidly-developing hardware
drove the silent AI to enter its third wave of development, which
continues today. (Shahmin, 2019) With the driving forces of sufficiently
massive data, powerful computing resources, advanced algorithms and many
other factors, AI has developed enough to reform modern industry. The
keywords occurring most frequently in the integration are the core
breakthroughs of this wave of AI: “big data” and “deep learning”.
Judicial reform is benefitting from the thriving development of judicial
big data and the wide application of information technology represented
by deep learning. (Bhattacharjee, 2012) More specifically, the primitive
accumulation of judicial data, the improvement of hardware performance
and the effective application of AI serve as an important foundation and
inexhaustible forces for building smart courts.
Emerging judicial big data in the Chinese judicial system
The notion and scope of big judicial data
Abundant judicial data resources serve as an important foundation for
constructing information-based courts in China. Scholars have different
views on the concept and scope of judicial big data. From the
perspective of judicial statistics, some researchers regard the data
from cases tried by over 3500 courts across the country over more than
60 years as judicial big data; (Yan, 2014) from the perspective of data
characteristics, some consider judicial big data to be a dataset formed
in the process of rapidly capturing, managing and dealing with judicial
information by using a new processing mode armed with an all-round,
accurate, forward-looking, scientific capability of analysis, judgement,
insight and optimization. (Wang, 2016) This author contends that
judicial big data should be a dynamic concept. Massive data with
substantial significance to the court, relevant parties and the public
are formed in judicial practice; the courts store, disclose and excavate
those data in an intelligent manner. After AI evaluation, the cumulated
data evolve into different forms of datasets that can serve the judicial
authorities, relevant parties and the public.
b. Primitive accumulation of judicial big data
Compared with traditional data processing technology, big data is much
more than having greater data capacity. According to the International
Data Center, big data is characterized by four remarkable features:
large volume, variety, high velocity of data processing and low density
of data value. With these features, Chinese judicial big data is a type
of multidimensional, large-scale, traceable, electronic data collection
covering all kinds of judicial activities by relying on the five
following information platforms established by Chinese courts under the
auspice of the SPC.
The data regarding judicial process.
The whole process of various judicial activities produces a large amount
of dynamic information, for example, the number of days after receiving
the pleadings that it takes the court to deal with the case; when the
evidence should be submitted; the appearance of witnesses, the
adjournment or postponement of the trial. In November 2014, the SPC
established the China Judicial Process Information Online
(https://splcgk.court.gov.cn/gzfwww/).
Afterwards, all cities, regions and provinces across Mainland China
gradually established unified sub-platforms for the disclosure of
judicial process information. The judicial process platform allows
interested parties to obtain access to various judicial process
information related to cases dealt with by courts throughout the
country. For example, parties can obtain the real-time information of
their cases by only inputting their names and ID numbers with
verification through mobile phone applications. Moreover, the platform
is supplemented with supporting information such as relevant judicial
interpretations, directory of judges, case introduction, and
announcements of court hearings. The website also sets up the navigation
of the systematic scene of the SPC’s judicial service, which helps
parties understand and utilize the relevant litigation process. By
December 2019, the China Judicial Process Information Online received
130 million visits in total and aggregated a huge volume of judicial
data while offering convenience to users.
The data regarding court hearings.
In September 2016, the SPC set up a website for the disclosure of court
hearings to broadcast the trials by Chinese courts at all levels
nationwide (http://tingshen.court.gov.cn/). The court hearing platform
provides live streaming of selected court hearings at all levels across
the country. By December 2019, the total number of live hearings
broadcasted was close to 6 million, and the number of visits had
exceeded 21 billion. These numbers show that the public pays close
attention to live court hearings. This website also offers services
including recording, broadcasting, and hot spot ranking. It is even more
interesting to note that the public will post and share their favourite
moments of court hearings on social networks, which supplies vivid
judicial materials to popularize Chinese laws and the judicial system
among the populace.
The data regarding all types of judicial documents.
The SPC’s Provisions on the People’s Court Publishing Judgements on the
Internet officially entered into force in January 2014. Meanwhile, the
SPC has established the Chinese Judgements Online to publish the
effective judgements made by the Chinese courts at all levels
(https://wenshu.court.gov.cn/). In 2016, the SPC further broadened the
sphere of disclosed judicial documents to include all kinds of
judgements, verdicts, payment orders, notices of rejecting complaints,
decisions of national compensation, decisions of compulsory medical
treatment, decisions of penalty execution and alternation, decisions of
detention and penalty, mediation statements of civil public interest
litigations, administrative mediation statements, and any other judicial
documents that can stay or close litigation proceedings. Theoretically,
Chinese courts publish any judicial documents online that may affect the
substantive and procedural rights and interests of the parties. China
Judgements Online is regarded as the most important platform in judicial
big data. By December 2019, the quantity of judgement documents
disclosed on the website reached more than 80 million and has been
growing at the rate of 50,000 new documents per day. The number of
visits to the whole website reached 40 billion. The earliest date of all
judgement documents could be dated back to 1996.
The data regarding enforcement.
The SPC built two websites disclosing enforcement information in 2013,
normalizing the collection, exchange and application of enforcement
information and sharing enforcement information within all Chinese
courts.
(http://zxgk.court.gov.cn/
and http://jszx.court.gov.cn/) Meanwhile, the parties in action are
able to obtain access to information related to enforcement
registration, enforcement measures and enforcement personnel through
this platform. Most importantly, it can disclose the information of any
person who maliciously resists enforcement as a punishment. Moreover,
this platform also supplements the Chinese credit reporting system with
relevant enforcement information. By December 2019, the number of
dishonest persons who resisted enforcement and were subsequently
disclosed at http://jszx.court.gov.cn/ was close to 6 million. This
website has another vital function: to auction executed property online.
The online auction system was officially established on March 1, 2017,
and by December 2019, the number of judicial auctions organized on this
website had exceeded 460,000, and the volume of transactions had reached
994.395 billion RMB. Before the establishment of this function, some
Chinese courts had already started to experiment with online judicial
auctions through popular e-commerce service providers, such as the
Alibaba and Taobao websites. Enforcement judges will also sometimes
organize live online auctions in person, similar to TV sales stars, to
promote judicial auctions.
Information on litigation service.
In 2015, the SPC set up a litigation service network whose major
functions cover information queries, litigation guidance, online
registration, submission and exchange of documents and material, online
evaluation, complaints, appointments, etc.
(http://ssfw.court.gov.cn/ssfww). Chinese courts actively publish case
flows and electronic files from litigation to support litigation service
networks. Overall, Chinese courts attempt to share resources between
litigation service networks with the abovementioned four platforms
(judicial process platforms, judicial document platforms, enforcement
information platforms, and court hearing platforms) and established case
flow management systems and online office systems. These instruments and
technologies greatly facilitate information sharing among judges,
parties and other involved persons and thereby streamline judicial
proceedings.
The SPC has taken a pioneering and exemplar role by establishing the
abovementioned five types of platforms. Afterwards, all Chinese courts
at all levels followed the SPC’s footsteps to establish and publish
their own datasets. By the end of 2018, 82.67% of Chinese domestic
courts had established litigation service networks. Moreover, more than
44% of the courts had developed computer apps or WeChat Mini Programs
as new media installed on people’s smartphones to facilitate litigation
services. The primitive accumulation of data regarding every aspect of
all varieties of judicial activity and originating from Chinese courts
at all levels will approach a staggering level and constitute an
enormous data pool for constructing smart courts. The exchange, transfer
and sharing of these data and between different datasets bring the whole
Chinese judicial system into the new information era. The exposure of
all kinds of judicial data is the first step taken by the Chinese
judicial system to utilize information technologies to make transparent
judicial activities, streamline litigation processes and enhance public
supervision. Furthermore, massive data and various platforms provide
effective instruments and abundant research resources for the SPC to
coordinate and unify Chinese judicial practice and explore directions
for further evolution, which constitute the cornerstone for constructing
smart courts.
Informatizing judicial proceedings and case management
The process of informatizing Chinese courts is the process of deepening
cooperation between innovative information technology and judicial
practice. In the early days of constructing Chinese smart courts, the
application of information technologies was restricted to transferring
the operation of some procedural matters from offline to online. This
achieved the primitive accumulation of judicial data and relevant
information. In version 2.0 of constructing Chinese smart courts,
emerging technologies such as character recognition, speech recognition,
and live streaming made the informatization of the whole litigation
process possible. Version 3.0 of such construction further deepened the
application of technologies to all kinds of judicial activities and
moved the whole litigation process online. In other words, with the help
of AI, such as deep learning and other emerging technologies, version
3.0 attempts to seek breakthroughs by promoting the automatic production
and corresponding supervision of relevant judgement documents connected
to cases with similar merits. Relevant innovations and
intellectualization constantly emerge. From case association, the
presentation of laws and regulations, pushing similar cases, and the
automatic production of legal documents including judgement documents
and then moving on to intelligent legal research and judgements, the
establishment of a judgement model and an early warning of different
judgements for cases with similar merits, the impacts and application of
information technologies based on AI are becoming increasingly obvious
and versatile in every aspect of the judicial process.
Specifically, regarding legal research, semantic search and legal
questions and answers based on NLP (natural language processing) and
deep learning make the search services more accurate. With respect to
electronic evidence, technologies such as NLP, TAR (technology assisted
review), machine learning and predictive programming greatly enhance
efficiency when circulating electronic evidence and discovery
procedures. (Tencent Research Institute, 2017) Considering the aspect of
evidence verification, Blockchain, which features “tamper-resistance,
decentralization and joint verification”, is extensively used in data
storage and evidence notarization. Chinese courts have started to
recognize TSA-format time-stamped certificates affixed with digital
fingerprints and authoritative time produced by reliable third-party
time-stamp service agencies established by national information centres.
(Meng, 2019) With respect to case circulation, mature speech and image
recognition technologies make the simultaneous generation of electronic
archives and profound applications possible, with powerful support from
court private networks and open cloud platforms. In the process of
enforcement, many courts have integrated the databases of national
administrative agencies for industry and commerce, taxation, land,
housing and construction, banks and e-commerce; they have built
all-dimensional management systems of trace analysis for the executes;
and courts have executed property assessment through big data analysis
and visualization, supplying monitoring and early warning of executes’
unusual activities. Judicial big data has become an important
sub-database of the national big data system. (Yu, 2015) The
cross-fertilization between the Chinese judicial system, the big data
system and the development of information technologies is also a
prospect. The abovementioned system provides technical support to
promote the efficiency of all judicial proceedings. Meanwhile, the
Chinese judicial system provides platforms where relevant technologies
can practice, evolve and make breakthroughs. The technologies necessary
for the construction of smart courts need to be verified in judicial
practice. Chinese courts and relevant judicial activities provide the
best venue for such applications, with timely feedback and improvement
advice. Diversified support of judicial instruments by information
technologies can be categorized into the following four functions:
Information inquiry and push functions
In trial, access to associated information can help judges improve the
efficiency of the lawsuit, reduce the risks of sham and malicious
lawsuits, and help executors accelerate the enforcement process and
improve the quality and efficiency of the execution. The associated
information query can provide judges with information including related
cases, associated parties, and related processes. For example, with the
help of this instrument, judges are able to browse litigants’ previous
litigation records, ongoing litigation cases and other information to
avoid repeated and sham litigation. (Tang, 2017)
Function connecting legal provisions and similar cases
The intelligent delivery of relevant legal provisions and similar cases
to judges can enhance the efficiency of judgements, unify judicial
proceedings and judgements, and maintain judicial impartiality. By 2019,
2,703 courts in China had been armed with instruments automatically
connecting to legal provisions, accounting for 77% of the courts across
the country. (Chen, 2019) A total of 2,061 courts had been equipped with
push instruments for cases that will send case files with matching
elements automatically to judges, accounting for 58.72% of all Chinese
courts. (Chen, 2019) Courts located in 15 provinces in Mainland China
boast of the abovementioned functions. (Chen, 2019)
Function generating judicial documents
Judicial document writing, as the most burdensome and difficult
component in judges’ judicial work, is also an important target of smart
court construction. In the early days of informatization, the document
generation system could only provide a document template for simple
procedures. With the development of AI technologies, Chinese courts have
developed auxiliary systems generating all varieties of judicial
documents to relieve judges of this repetitive and rigid work. The
relevant systems mainly consist of two types. One is the automatic
system generating procedural and standard judicial documents. By the end
of 2018, a total of 1,877 courts in China were capable of generating
standard judicial documents in batches, accounting for 53.48% of the
courts across the country. (Chen, 2019) Courts located in 22 provinces
have been provided with this function. The second type is the automatic
generation of a rough draft of substantive judicial documents. By the
end of 2018, 2,815 courts were able to automatically generate elements
of civil and administrative judicial documents, including the cause of
action, party information, litigation claims and merits, accounting for
80.20% of the courts across the country. (Chen, 2019) A total of 2,707
domestic courts were able to automatically generate elements of criminal
judicial documents, such as procuratorates, defendant information,
defendant criminal records, case facts, and charges, accounting for
77.12% of the courts across the country. (Chen, 2019)
Function predicting judgements
Over the years, Chinese courts have achieved judgement prediction,
starting with simple cases and relying on knowledge atlases and
technologies, such as judicial big data and the automatic extraction of
judicial elements. Concrete progress has been made in highlighting the
difference between real judgements and predictions. For example, the
Shanghai auxiliary system for intelligent criminal case handling
constructs a neural network model of penalty measurement based on a big
data analysis of criminal cases through machine learning, semantic
recognition and manual annotation to provide a reference for penalty
measurement to procurators and judges. (Ge, 2018) The Beijing “smart
judge” system provides different auxiliary functions in accordance with
the cause of action in civil cases, for example, providing intelligent
calculation services for motor vehicle traffic accident cases; property
partition modelling services for divorce cases; and principal and
interest calculation functions for debt cases. (Zuo, 2018) With these
specific tailored small instruments, judges can more efficiently produce
judicial documents.
Effectiveness assessment of Chinese judicial informatization
Rapidly accumulating judicial big data supplies abundant “blood” to
build Chinese smart courts. Advanced information technologies, which are
represented by AI, play a key role in maximizing the value of judicial
big data and vitalizing the potential of Chinese smart courts.
Practical results of informatized judicial proceedings
Currently, 3,519 courts and 9,279 tribunals in Mainland China are
interconnected through private networks. (Wang, 2016) Chinese courts at
all levels automatically report data regarding judicial process and
judgement documents to the judicial big data platforms established by
the SPC at a frequency of once a minute or greater. The five
abovementioned judicial big data platforms supply sufficient information
disclosure for the courts and parties, as well as rich data support for
the development and application of all kinds of judicial information
technologies. Based on this fact, achievement of the informatization of
the Chinese courts is satisfactory, mainly lying in the establishment of
Internet courts, the noticeable enhancement of litigation efficiency,
and the emerging smart trial system supported by versatile intelligent
trial instruments.
Internet Courts
Internet courts are Chinese trial courts specifically established by the
SPC to hear cases regarding the Internet, including e-commerce disputes,
Internet service disputes, Internet financial disputes, Internet
intellectual property disputes, Internet torts, Internet pro bono cases,
and Internet administration actions. On August 18, 2017, the Hangzhou
Internet Court was officially founded, specifically to hear six types of
civil and administrative cases related to the Internet at the first
instance within the jurisdiction of the courts located in Hangzhou,
Zhejiang Province. One year later, the Beijing Internet Court and
Guangzhou Internet Court were established in September 2018. The SPC
published the Provisions on Issues over the Case Trial by Internet
Courts (Fa Shi [2018] No.16, hereinafter referred to as the
“provisions”), stipulating provisions regarding the jurisdiction of
Internet courts, online litigation, electronic evidence discovery, etc.
The establishment of Internet courts represents a milestone in China’s
judicial reform that meets the judicial demands in the era of the
Internet and integrates the existing achievements in constructing smart
courts. Additionally, it is a solid step for the Chinese judicial system
towards exploring corresponding and supporting procedural rules and
regulations for online judicial proceedings, producing significant
social and practical effects. Overall, the greatest advantage of
Internet courts is that they improve the trial efficiency for resolving
disputes and significantly reduce the cost of litigation. In two years,
the Hangzhou Internet Court dealt with more than 20,000 cases in total,
with the rate of online registration reaching up to 92%; trial times
and trial period were reduced by an average of 66% and 25%,
respectively, compared with traditional offline trials; the court made
judgements in 99% of registered cases; and the rate of voluntary
performance reached 98%. (Meng, 2019) The Beijing Internet Court
received 34,263 cases in a year and wound up 25,333 cases. (Meng, 2019)
It made judgements in 98.3% of registered cases, and its ratio of
voluntary performance has reached up to 98%. (Lu, 2019) Among the
courts across Beijing, its comprehensive trial quality and efficiency is
ranked highest. Statistics clearly show that the online dispute
settlement model greatly decreases the litigation cost and increases
procedural efficiency. The application rate of the summary procedure at
the first instance in the Beijing Internet Court has reached up to
95.2%; the average trial time is only 37 minutes; the complete judicial
proceedings take only 40 days on average; and the cost per person per
case saves approximately 800 RMB on average, including 16 hours of
travel. (Xie, 2011) For Guangzhou Internet Court, the average trial time
of the cases completed is 46 minutes, and the time taken for all
judicial proceedings can be reduced by 80%. (Dong, 2019) These
remarkable improvements completely fulfil the desire for a “low-cost
and quick trial” in online judicial dispute resolution.
Litigation efficiency
In addition to Internet courts, traditional courts have also experienced
a noticeable improvement in litigation efficiency with the support of
information technologies. The caseload of Chinese national courts is
exceptionally large, and the whole Chinese judicial system is
overwhelmed. The number of cases in Chinese national courts is
exceptionally large; for example, in 2017, the average number of cases
administered per judge in the
Nanshan
District People’s Court in Shenzhen, Guangdong Province, was
approximately 437 (Chen, 2019b). Taking the People’s Court of Yantian
District, Shenzhen as an example (hereinafter, Yantian Court), it is the
only court that has the jurisdiction over administrative cases in the
city of Shenzhen. In 2017, its caseload was 2.73-fold that in 2015,
(Chen, 2019) which means that it is impossible for the rapidly
increasing demand for judicial productivity to be solved by simply
expanding human resources. Based on a series of administrative
documents, including the 5-Year Development Plan for Construction of an
Information-based People’s Court (2018-2022), Opinions of the Supreme
People’s Court on Accelerating Court Construction, and the 3-Year Plan
for Construction of the Shenzhen Information-based Court (2017-2019),
the Yantian Court is experimenting with a practice mode called the
“one-track paperless case management system”. After the pilot
implementation was initiated in May 2018, the strengths of the new case
management system became increasingly obvious. First, it relieves judges
and their assistants from complicated and time-consuming case-related
filing work. The Yantian Court has finished 1,033 electronic archives
within the first 3 months of paperless case management, saving
approximately 1,200 working hours compared with traditional filing.
(Wan, 2019) Second, the trial performance has been made faster and
improved. The new case management system has achieved a 100% automatic
generation of judicial documents related to procedural matters. (Wan,
2019) The number of automatically generated documents reached 36,991,
and such documents were delivered by the electronic service platform
4,711 times. (Wan, 2019) Third, the judicial act is becoming
increasingly standardized. In each process, judges’ electronic
operations are transparent and traceable. Fourth, litigation service has
been upgraded by supplying online services to the involved parties and
other litigation participants. (Wan, 2019)
Efficiency of versatile intelligent trial instruments
In practice, the adoption of AI at every stage of judicial proceedings
is growing vigorously. Examples are countless. The Shanghai Higher
People’s Court developed an intelligent auxiliary system for criminal
case handling (commonly known as the “206 project”), whose core
functions include guidance in evidence standards, legality and
compliance verification for single evidence, and review and judgement of
evidence chain integrity. (Yan, 2017) Courts, procuratorates and police
departments located in Huaxi District, Guiyang City, Guizhou Province
jointly piloted the big data case handling system, incorporating an
application module providing standard guidance for evidence that
normalized the evidence forms transferred in everyday cooperation
between these authorities. (Wang, 2017) Guangzhou Intermediate People’s
Court developed an intelligent penalty measurement and judgement system.
After comparing and taking reference of over 3 million similar cases,
this system provides a graphical analysis and data reference for the
range of penalty measurements in criminal cases. (Shang, 2018) Shenzhen
Futian People’s Court and Alibaba Company worked together to develop an
intelligent financial dispute adjudication system, which can
automatically generate information and litigation materials related to
the case at hand. (Liu, 2017) These intelligent systems and programs not
only greatly increase the efficiency of case resolution by facilitating
the work of judges by providing rapidly delivered, transferred, and
automatically generated judicial documents but also enhance cooperation
and standardization between different legal authorities. Taking the
intelligent penalty measurement system adopted by the Hainan court as an
example, by December 2017, the system had been used more than 550,000
times. (Huang, 2017) A total of 307 criminal judges from 25 courts
prepared 1,423 tables of penalty measurement through the system. (Huang,
2017) A total of 1,072 legal documents, including 773 judgements and 299
other judicial documents, were generated by intelligent systems. (Huang,
2017) These systems reduce by 50% the time judges take to resolve
standardized penalty measurement cases, by 70% the time needed to
prepare judgement documents, and by nearly 90% the time needed to make
procedural legal documents. (Huang, 2017) In conclusion, these systems
significantly reduce the workload of judges dealing with penalty
measurement, effectively alleviate the prominent contradiction between
rapidly increasing caseloads and limited human resources, and decrease
the number of situations in which cases with similar merits receive
different judgements.
Accelerating internal judicial reform in constructing smart courts
After 2010, the Chinese judicial system initiated a series of intensive
judicial reforms aimed at improving judicial institutions, establishing
judicial responsibility and staffing systems, optimizing judicial
proceedings and increasing the transparency of judicial activities.
(Feng, 2015) The application of information technologies fuel China’s
judicial reform from various perspectives. Inside the Chinese judicial
system, judicial reform starts by adopting a strict judge selection
process; building a judicatory group consisting of judges, judges’
assistants and clerks leads to a comparatively steady number of judges
and an adjustable group of judges’ assistants and other trial affiliated
staff. With the application of information technologies to courts’
everyday work, constructing smart courts has also had a profound impact
on the traditional organization of Chinese judicial human resources.
In recent years, electronic office systems have been popularized in
courts at all levels throughout the country. In 2016, the court’s
private network had fully expanded to more than 3,500 courts and more
than 10,000 tribunals and maritime tribunals all over the country,
basically making it possible to provide online approval of all affairs,
online management of all judges and online circulation of all cases.
(Li, 2018) The human resources information management system radiating
to four levels of courts in Mainland China provides a basis for China’s
internal judicial reform.
As an important part of judicial system reform, China’s internal
judicial reform is beneficial for alleviating the contradiction between
rapidly increasing caseloads and limited human resources. China’s
internal judicial reform mainly refers to the reform of the court
staffing system, the organization of judges’ assistants and clerks and
so on. In addition to streamlining and increasing the efficiency of
judicial proceedings, constructing smart courts boosts the reform of the
Chinese court staffing system and human resources organization. First,
intuitive and easily recorded case information and various statistical
data make it convenient for courts to reasonably allocate judges’
assistants. Second, the electronic office system makes judicial staff
work traceable, which is helpful for establishing an objective
evaluation system for all judicial staff.
Judicial big data improve the distribution of judicial human resources
By December 31, 2017, the platforms for judicial big data management and
services established by the SPC had collected information related to 133
million cases across China, and thus the whole dataset had evolved into
the world’s largest trial information dataset. The nationwide judicial
data platforms include and constantly monitor important data and
statistics that can be used to distribute human resources, such as the
case closing rate of a court in a particular period, the distribution of
cases by subject matter, the appeal rate of trials following their first
judgement, the real-time workload of each trial tribunal and judge, the
duration and progress of trialled cases and so forth. Before the
construction of smart courts, these kinds of judicial data could only be
collected and reviewed in the annual reports of the courts, which only
include rough numbers of received and closed cases as a whole court,
without the data of each trial tribunal, judge and case.
The construction of smart courts makes accurate acquisition of real-time
data possible, thus providing a reliable basis and reference for
distributing judges and their assistants. The Chinese court staffing
system reform confirms the number of judges in the courts at all levels
and attempts to adjust the number of judges’ assistants according to
changing caseloads and court capacity. Based on that, the electronic
office platform is capable of figuring the number of real-time cases
dealt with by each tribunal or judge, and the big data management
platforms may calculate the working hours needed to handle a case and
make the specific work content visual. Based on consideration of the
abovementioned data, courts can decide how many assistants the judges
need according to their caseloads or further determine the kinds of
qualifications and professional skills required for their assistants so
that the courts can adjust recruitment qualifications or train existing
assistants. Courts that have not achieved “an assistant per judge”
allocation can also dynamically allocate their limited resources of
judges’ assistants in light of real-time judicial data, allowing already
overwhelmed tribunals and judges to receive timely human resource
support.
The online office system provides objective evaluation standards
All-dimensional judicial data provide accurate performance indicators by
offering quantitative and detailed data support. The online system
integrates judges’ and judges’ assistants’ personal information with
their work data, developing a multidimensional evaluation service
specifically tailored for courts, judges and judges’ assistants, etc. In
the online office system, each worker sets up his or her account and can
operate it independently, and every activity and movement within his or
her account is traceable. Previously, the judicial staff’s performance
could only be measured roughly through the number of allocated cases,
appeal rate, retrial rate, etc. The current electronic office system
makes the real-time trace of a specific case possible and makes each
movement and operation regarding a specific case apparent and visible,
which enriches performance evaluation standards for judicial staff. (Qu,
2016) Different courts are experimenting and developing their own
standards by utilizing these multidimensional data. For example, courts
at Guizhou Province extracted, specified and simplified the elements at
every stage of judicial proceedings and built a fundamental judge
performance evaluation framework consisting of the “judge workload
evaluation system”, “judge trial quality and efficiency evaluation
system”, “comprehensive judge workload evaluation system” and
“comprehensive judge evaluation system”.(Gui, 2017)
In addition, most Chinese courts currently still take the opinions of
presiding judges and judicial tribunals as the basis for evaluating the
performance of judges’ assistants. Under the reformed Chinese court
staffing system, judges’ assistants not only play an affiliate role in
conducting judicial activities but also are judges in training and will
be promoted to judges after an exam and selection. Therefore, evaluation
of their performance should not be affiliated with that of the presiding
judge and judicial tribunals. Courts can establish an independent
evaluation system for judges’ assistants and regard it as a vital
component of intelligent court internal management systems. The
independent evaluation of judges’ assistants is not hard if it is based
on clear evaluation indicators and accurate evaluation data extracted
from the current traceable electronic office system. The evaluation
system can also constitute a vital basis for diversified promotion and
evaluation of judges’ assistants.
Internal case evaluation and review in smart courts
Previously, Chinese courts relied on extensive human resources to
supervise and review case files to prevent trial risks. The rapidly
increasing caseloads and massive judicial data made manual evaluations
and reviews insufficient for providing supervision. The informatization
and construction of smart courts can help Chinese courts solve this
problem. For example, Hebei Province innovatively researched and
developed a system for preventing legal risks that may occur in judicial
proceedings. The Hebei Higher Court defined and sorted out 125 points of
risk for all problems arising from case supervision in past years and
carries out an automatic intelligent inspection according to these
dimensions, including information input, data quality, process
integrity, material completeness and procedural legality. (Ding, 2015)
Intelligent supervision and inspection greatly improve the timeliness,
accuracy, and comprehensiveness of data management and control and
relieve judicial staff from error-prone and burdensome manual review.
Now, a regular check on all the judicial case files of a large city only
takes10 minutes, significantly saving judicial management costs and
improving the comprehensive efficiency of trial management and quality
of case handling. (Ding, 2015)
Pitfalls and challenges in constructing smart courts
While Chinese courts have been actively amplifying informatization of
the judicial process, they have encountered numerous pitfalls and
challenges, some of which are still severe and unsolved.
Increase sharing and connection of judicial big data
The construction of smart courts and the application of AI technology
must be based on a large volume of complete and accurate judicial data.
The “bigness” of judicial data is a premise for AI technology to be
deeply developed and accurately applied. If judicial data cannot be
collected, shared and connected at a national level, the significance of
intelligent justice will undoubtedly be limited. (Tang, 2017) Currently,
different provinces in Mainland China have established independent
operational interfaces and systems for their own intelligent judicial
proceedings and case management, such as the “12368” platform of the
Shanghai court, the electronic court system in Jilin Province, and the
intelligent court system of Zhejiang Province. Most courts developed
their own intelligent judicial instruments to facilitate the work of
their staff. These information systems and intelligent instruments may
have similar functions but with different settings. Even though the
judicial databases of different provinces are to some extent connected
under the auspices of the SPC, information integration between these
independent databases has experienced challenges; specifically, tailored
intelligent instruments are not communal. The data exchange between the
different court databases for different provinces is not without
barriers. These useful information platforms and intelligent instruments
do not cover all Chinese courts. If the barrier of information
circulation is not overcome, these independent databases will be just
“information islands” and cannot support judicial big data. Therefore,
courts should make an effort to solve difficulties in data sharing and
availability, including between the judicial system and other
information providers, improving the use of data resources in the
following dimensions.
First, data resources should strengthen information infrastructure
support. Whereas the Chinese courts show remarkable advantages in the
efficient construction and velocity of network and hardware facilities,
the existing information infrastructure still does not fully meet the
requirements for data exchange and sharing nationwide. The deficiencies
are more obvious in the trial courts in rural areas. Commentators
suggest that the Chinese judicial system should build a nationwide
information sharing website consisting of five network systems: “new
mobile private network, court private network, mobile private network,
exterior private network, the Internet and confidentiality involved
internal network”. (Hu, 2019) Second, data resources should enhance
data sharing and maximize the interconnection of the court both
internally and externally. Internally, courts should enhance information
sharing and support among internal departments, such as case
registration, trial, enforcement, judicial appraisal, and judicial
auction. Externally, it is necessary to offer a collaborative interface
for different judicial scenarios, such as promoting the connection
between commutation and parole case data and management platforms,
making the road traffic accident data sharing channel available to the
public security department, promoting the integrated processing platform
for road traffic accident disputes, and even better connecting criminal
and civil case data. (Hu, 2019)
Judicial data and information security
In the era of big data, interconnected judicial information not only
brings great convenience to the judicial system but also brings about a
systematic and uncontrollable risk of information disclosure. It is
inevitable that informatizing smart courts requires technical support
outside of courts, which will undoubtedly confront the related AI
systems with several risks. Therefore, “ensuring information security”
and the “informatization of courts” are equally important in the
construction of smart courts. The security of judicial information
includes two aspects. One is to ensure that the primitive information
acquired and stored by the court is genuine, valid and has not been
tampered with. The other is to ensure that confidential judicial
information is not disclosed or stolen. All courts are facing the
difficult problem of keeping the information in the platform and system
secure. Many courts have contributed their ideas for maintaining
information security. For example, the Harbin intermediate court assigns
archive scanning to a professional team under a confidentiality
agreement. The court requires the scanning of files to be completed in
the same day. In other words, the team has to scan and return the files
on the same day to avoid information disclosure. (Li, 2017) Some courts
seek resolution in the system itself. For example, courts in the
province of Inner Mongolia built a security exchange platform as a
barrier between internal networks and external networks, enhancing the
security of the court information system. (Liu, 2017) Efforts made by a
single court are obviously limited and primary, and even too formalized
in the current judicial system, the problem of information security
needs more centralized and standardized regulation.
The SPC is advised to adopt standardize security requirements, judicial
staff should be educated to ensure their awareness of confidentiality
issues, information protection technologies require upgrading, and the
management of information security should be enhanced. The relevant
efforts can be carried out from the following dimensions. (Tan, 2019)
First, the SPC should establish relevant criteria for system security
and more strictly examine the qualifications of technical resource
providers outside of the court system. (Tan, 2019) Moreover, AI
applications should not be adopted until they have passed certification
showing that they meet national security protection standards. Second,
numerous Chinese high courts (courts one level lower than the SPC)
should take the responsibility for establishing an information
application and monitoring centre; supervising centralized management,
information backup, and lower courts’ reports; and recognizing and
analysing the reported information, thus generating judicial statistical
data. (Tan, 2019) In addition, SPC can provide sharing and flexible
allocation of information resources by pooling these resources,
including computing, storage, network, and security, thereby promoting
resource utilization. (Tan, 2019) The risk of judicial information
security will continue for years and will never be completely
eliminated. Information security is a serious problem in current Chinese
society beyond judicial areas. Developing technologies will constantly
bring solutions and new challenges to information security. (Arruda,
2017) Chinese courts should take cautious steps when expanding the
volume of judicial data and the relevant data exchange and sharing.
Specifying the boundary of intelligent instruments
In judicial practice, some courts evaluate a judge’s performance
according to the judgement result predicted by the legal AI system.
(Gao, 2018) In other words, in these courts, a judgement that is not in
line with the intelligent prediction result will receive a warning or
may affect the evaluation of the judge’s performance. Clearly, this
approach goes beyond the border for application of the legal AI system.
In addition, the overuse of the AI system to judge complicated cases
will encroach upon judges’ subjective initiative and discretion and does
not comply with the objective requirements of judicial independence and
judicial responsibility. Currently, there is no clear boundary for when
to apply information technology in judicial practice. It is suggested
that the relationship between intelligent instruments and judicial staff
be more clearly defined in the construction of smart courts. (Tan, 2019)
The development of AI is divided into weak AI periods, strong AI periods
and even super AI periods. (Tan, 2019) Weak AI refers to a system that
only imitates human intelligence; strong AI refers to a system that is
armed with human intelligence in all areas; and the super AI refers to a
system that outperforms human intelligence in all areas. (Tan, 2019)
Judicial AI at the present time is in the weak AI stage. The logic under
which the legal AI system functions is making a correct summary of the
behavioural regularities implied in a great number of judicial acts and
then providing a correct and reasonable imitation. It can not only
effectively alleviate the contradiction between rapidly increasing
caseloads and limited human resources but also reduce the errors or
deviations existing in judicial acts due to individual factors. In
judicial activities, the AI system and litigation participants mutually
influence each other. AI imitates the judge’s behavioural pattern and
law, whereas judicial reformers and participants hope to make judicial
acts more standardized and accurate through the AI system. The
relationship between AI and judicial personnel is not competitive but
one of mutual assistance, guidance, correction and monitoring. The
judicial judgement process is a combination of natural rationality,
human rationality, value judgement, and human perceptual factors. In the
implementation of the judgement process, such human rationality and
perceptual factors can only originate from judges who are trained in the
law and have abundant experience of legal theory and practice and not
from AI. With different working mechanisms and acting modes, AI and
judicial personnel can be integrated with integrity. Technologies will
constantly develop and upgrade to take on an increasing number of jobs
within judicial activities, but they should not change the substance of
the judiciary. The whole judicial system should maintain vigilance on
overuse or overreliance on AI systems and intelligent instruments. The
AI boundary will be an increasingly rigorous subject in our future
research.
Preventing algorithmic bias by legal AI systems
For legal AI systems, algorithmic bias is inevitably a major challenge.
It affects the accuracy of decision-making and is even more likely to
fatally damage judicial fairness and justice. Therefore, it is essential
to intensify supervision regarding the legal AI system algorithm. To be
specific, the relevant supervision should at least cover the algorithm
managing judicial data sources and its implementation effects.
Data-driven discrimination is one of the most important causes of bias
in the AI algorithm. (Opsomer, 2009) Supervision of the data source
starts with scrutinizing data input, including data samples and case
elements. Meanwhile, a long-term mechanism for supervising and managing
data accuracy should be set up to strictly control data quality.
Moreover, the regulation of the algorithm should be carried out in two
dimensions. Currently, the operation of the algorithm works more like a
“black box”-people can obtain the results but are unable to unveil
the process behind the deep learning. (Ma, 2019) In this case, we could
supervise the complete process for algorithmic rule design. At the same
time, we must acknowledge that no matter how hard we work to strengthen
the supervision of the algorithm, it is impossible to completely
eliminate the risk of bias arising from the mechanical quantification of
the case in the algorithm’s rules. From the perspective of the
supervisory sphere, not only the algorithm design should be supervised
but also the algorithm products and other relevant applied products. In
other words, the supervisory responsibility of the court is not limited
to the stage of algorithm design but includes the process of inserting
the algorithm into the intelligent system and the process of applying
the intelligent system in judicial practice. Then, the application and
results of the algorithm will eventually be tested and examined in
judicial practice.
V. Conclusion
In the process of constructing smart courts, the Chinese judicial system
has achieved the most complete network coverage, the biggest data
storage, the strongest openness and the most advanced intelligent
technology support. It represents Chinese wisdom in the judicial
civilization in the information era. Without any doubt, smart courts
boast a superiority that traditional courts do not have. The advantages
not only include facilitating the work of judges with diversified trial
support instruments, greatly increasing the efficiency of judicial
proceedings, and offering disputants with versatile and more accessible
judicial services but also providing a more accurate and objective
evaluation system for judicial internal reform. Smart courts not only
alleviate the troublesome contradiction between rapidly increasing
caseloads and limited human resources but also provide unlimited
possibilities for AI development and application. However, people must
be clearly aware that the rationality of information technologies should
not be exaggerated. (Long, 2019) In the subsequent stable period of
court informatization, the Chinese judicial system should promote data
opening and sharing to strengthen judicial big data, emphasize
information and data security, specify the boundary of intelligent
instruments, and avoid algorithm bias in the legal AI system.
Additionally, the SPC should consider setting up more formal,
standardized and comprehensive criteria for judicial informatization to
secure Chinese smart court development.
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