Public law foundations of the digital transformation of the "Smart Court" judicial system (China's experience)
The article examines the legal issues of the impact of digital technologies on the modern judicial system. A new stage of judicial reform has been identified, which has received a single name - Digital Justice. Similar processes are taking place abroad, which determines the relevance of comparative legal research and an appeal to the experience of the People's Republic of China. The digital transformation of the judicial system of the People's Republic of China is taking place under the auspices of the "Smart Court" concept. The positive results of the implementation of this trend are highlighted: the possibility of intellectual analysis of judicial practice, the creation of special algorithms for the preparation of draft judgments, the establishment of an Internet court, the approval of rules for asynchronous litigation, the development of digital products based on artificial intelligence specifically for judicial authorities. The principles of using artificial intelligence in the judicial sphere are presented. The necessity of developing and adopting a national strategy for the digital transformation of judicial authorities in the Russian Federation is shown.
Keywords: judicial power, digitalization, digital justice, transformation, "Smart Court", China.
The rapid development of digital technologies affects many aspects of social life, actively influencing the system of public administration. This leads to the adoption of various strategies that define the goals and parameters of digitalization implementation in a particular element of public administration. Thus, for a short period, the decrees of the President of the Russian Federation approved the Strategy for the Development of the Information Society in the Russian Federation for 2017-2030 (dated May 9, 2017 N 203), the National Strategy for the Development of Artificial Intelligence for the period up to 2030 (dated October 10, 2019 N 490), the Strategy of scientific and technical development of the Russian Federation (dated February 28, 2024 n 145), etc. Each of the above documents focuses on the consistent implementation of digital technologies in current management activities <1>. These requirements also apply to judicial authorities, where digitalization is directly linked to the principles of its activities - openness, accessibility, transparency of proceedings.
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<1> Pisarevsky E.L. The government of the state and power in the Russian Federation // State and law. 2023. N 12. pp. 56-77.
At the end of the XX century. The popularization of cosmonautics has become traditional. At the initial stage, the tasks of computerization of judicial authorities were set, which was very difficult at that time. An illustration of a complex process can be considered the first experience of the functioning of courts in new conditions in the city of St. Petersburg. The starting point was the Decree of the Governor of St. Petersburg dated February 25, 1997. N 163-r "On measures to ensure the normal functioning of the courts", according to which the Governor's administration, the Russian Foundation for Legal Reforms and St. Petersburg University invested financial resources in the declared provision. Subsequently, the World Bank implemented a program to allocate funds to the Special Faculty of Law of St. Petersburg State University, which acquired modern computers for transfer to the courts of the city, while the computers were on the faculty's balance sheet <2>. At the same time, St. Petersburg was considered the territory of rapid implementation of best practices. In other regions of the Russian Federation, things were much more complicated.
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<2> Computerization of the courts of St. Petersburg / St. Petersburg State University.
At the beginning of the XXI century. everything has accelerated significantly. The tendency for rapid change of social factors is also evident now: if earlier it took decades to transform, now revolutionary changes occur within one or two years, which is maximally facilitated by technological progress. It should be noted that significant work has been carried out in Russia over the past decades:
- the vector of information support for the activities of the judicial corps has been determined (Resolution of the Council of Judges of the Russian Federation dated December 5, 2019 on approval of the Concept of Information Policy of the judicial system for 2020 - 2030);
- The State Automated information System "Justice" has been created;
- the digital platform of the Justice Online superservice is presented;
- the possibility of turnover of documents in electronic form in criminal, arbitration, and civil proceedings has been fixed (Federal Law No. 220-FZ of June 23, 2016 "On Amendments to Certain Legislative Acts of the Russian Federation regarding the Use of electronic Documents in the Activities of judicial authorities").
The next stage of judicial reform is united by one term - Digital Justice, which at the same time has received its international recognition (digital justice <3>, sometimes the term additional electronic justice <4> is used). The United Nations Development Programme (UNDP - UNDP) supports the development, for which a New UNDP Strategy is proposed (2022-2025), as well as further development of documents (such as, for example, the "Intrumentarium. Strategic transformation through e-justice" <5>). Regional seminars are held under the auspices of the United Nations to promote the established priorities.
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<3> Prince S. Digital justice // Review of computer law and security. 2018. Volume 34. Number 4. pp. 920-923.
<4> Kashanin A.V., Kozyreva A.B., Kurnosova N.A., Malov D.V. Information technologies in justice: state and prospects. Russia and the World: An analytical report. Center for the Development of Modern Law. Moscow, 2020. 81 p.
<5> The toolkit. Strategic transformation through e-justice. UNDP, 2022.
Digital justice is an integral concept of the transformation of judicial bodies and judicial proceedings in the context of the development of digital technologies. Based on this, it covers a wide range of areas: from clerical work in judicial bodies and rules of electronic interaction with bodies providing justice, to conducting electronic court proceedings and the possibility of introducing electronic assistants (based on artificial intelligence). Digital justice, since it affects the foundations of the organization and activity of the judicial branch of government, is often considered in parallel with the concept of digital sovereignty. This, in turn, when conducting a comparative legal study, actualizes an appeal to the experience of the People's Republic of China, where digital justice fits into a slightly different concept - "Smart court" (English - "Smart yard", in Chinese it sounds like Fa Zhi Hui Yuan <6>).
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<6> A smart court.
Initially, the idea of a "Smart Court" was announced in March 2016 during a speech by the Chairman of the Supreme People's Court at the session of the National People's Congress, in which it was considered as a way to expand openness. Already in July 2016, the General Staff of the Central Committee of the Communist Party of China (CPC) presented the Concept of the National strategy for the development of informatization <7>, paragraph 29 of which explicitly pointed to the creation of "smart courts" that promote informatization, openness and fairness. The concept was confirmed in the Five-Year Plan for the development of Informatization construction (2016-2020), a separate program in which is devoted to the informatization of people's courts 3.0 <8>.
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<7>
<8> Shi Ch., Surdin T., Li B. Intellectual court - a new way to justice in China? // International Journal of Judicial Administration. 2021. Volume 12. Number 1. Article 4.
Let's pay attention to the issues that were discussed at that time. At the end of 2017, the interim results of the implementation of the intellectual analysis of judicial practice were summed up, with the help of which the algorithm offered its own version of the final court verdict. Since the beginning of 2017, Shanghai has been using big data processing technology, which includes information about criminal cases, legal documents and judicial information resources. At the same time, a model of uniform evidence collection was introduced to prevent a phenomenon called: "wrong at the initial stage, wrong at every step, so wrong in the end" (from the speech of the Chairman of the Shanghai Supreme Court Cui Yadong <9>).
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<9>
One of the elements of the "Smart Court" in China is the creation of an Internet court. The name may create some confusion. This is not a specialized court that hears litigation on relationships arising in the digital space, or on disputes over the provision of Internet services. This is not a virtual court or an alternative dispute resolution model (digital mediator). The Internet court is a digital super-service that unites various digital platforms under its auspices, each of which provides a specific set of digital services: a digital management system; online litigation system (including the provision of video conferencing capabilities); blockchain-based electronic evidence storage platform; web applications; text recognition and translation into electronic form (and vice versa); generation of electronic text documents from audio files (for example, translation into the text of a court protocol); live broadcast of a court session and others <10>. He understands that inter is not-it is simply created on the basis of outsourcing, so each company is responsible for its segment, presenting IT- services. The presented possibilities are revealed based on the analysis of the Beijing Internet Court <11> and the Internet Court of Hangzhou <12>.
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<10> Papagianneas S., Junius N. Honesty and justice through automation in China's "smart" courts // Review of computer Law and security. 2023. Volume 51. Article 105897.
<11>
<12>
In 2021, the first rules of asynchronous litigation were approved, in which the parties are allowed to enter a dedicated digital platform at different times (a certain period of time is allocated), on which they can place their explanations, evidence, and various documents <13>. The Supreme People's Court of the People's Republic of China (its Information Center) aims all courts to integrate digital advanced technologies, encourages digital transformation and the construction of "smart courts" by presenting regular newsletters for this purpose <14>.
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<13>
<14>
China has also developed the first digital product based on artificial intelligence - iFlytek Judicial AI, which is specially designed for implementation in the activities of judicial authorities, combines various functions, including voice recognition, voice intelligent assistant, big data processing <15>. In December 2022, the Supreme People's Court of China published Opinions on the regulation and strengthening of the use of artificial intelligence in the judicial sphere <16>, which set specific tasks for the introduction of AI into the activities of judicial authorities: by 2025. It is already necessary to build a functional system that could undergo the first approbation in the administration of justice; by 2030, it is necessary to fully approve the necessary regulatory framework ensuring the effective use of AI in the organization and activities of judicial bodies. The principles of using AI in the judicial sphere have been approved:
- security and legality;
- honesty and fairness;
- transparency and reliability;
- observance of public order and good customs.
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<15>
<16>
Let's pay attention to the consolidation of the principle of auxiliarity, which means that the AI cannot make decisions for the judge, replace him. The results of AI are of an additional nature. All judicial decisions (as well as all judicial powers) are made only by judicial authorities. Responsibility for the decision is assigned to the decision-maker. The judge has the right to stop interacting with AI products and services.
The basis for the functioning of AI is the Internet platform "China Judgments Online" <17>, which has common features with the Russian GAS system "Justice", in which all court decisions are also published. At the same time, a section is carried out: one system is publicly available, the other is for judges and court staff, which also contains those court decisions, access to which is limited on the basis of the law <18>.
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<17> China Judgments Online.
<18> Chen B.M., Li Z. How will Technology change the Face of Chinese Justice? // Columbia Journal of Asian Law. 2020. Vol. 34. N 1. P. 1 - 58.
Analyzing the development of the concept of "Smart Court" in China, attention should be paid to the keynote speech of Deputy Supreme People's Court of the People's Republic of China Jiang Wei in 2021 at Peking University <19>. Let's identify the key points:
- the periodization of the digital transformation of the Chinese judicial system has been carried out, in which four stages are highlighted: electronics, networking, datatization and intelligence;
- judicial informatization is based on three basic characteristics: purposefulness, iterativity, and focus on innovation;
- China is the first country in the world that is already implementing AI in the administration of justice (online assistant judge "Xiaozhi 3.0" - Xiaozhi). "Artificial intelligence in court can compensate for the lack of human physical and mental abilities, reduce the impact of human errors such as cognitive bias, physical fatigue, outdated knowledge and interpersonal interference, effectively promote a unified judgment in similar cases, unify standards of legal judgment";
- the basic principle is "Machines can become more and more like people, but people cannot become more and more like machines. Machines are created by people, and people cannot be tamed by machines and become slaves of technology";
- the judge's decision is intellectual in nature, but cannot be reduced to mathematical calculation. Substitution of a judge by a car is prohibited by law;
- judicial justice should be based on the interaction of "the quality of the judge plus artificial intelligence", where the basis is not competition, but partnership and cooperation.
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<19>
In parallel with the development of smart courts, a special legal framework dedicated to cybersecurity is being formed, which is based on the Law of the People's Republic of China dated September 5, 1988 "On the Protection of State Secrets" (as amended on April 29, 2010), the Law of the People's Republic of China dated November 7, 2016 "On Cybersecurity", the Law of the People's Republic of China dated June 10, 2021 G. "On data security" <20>. In October 2023 The National Data Bureau, a coordinating body that promotes the joint use of information resources in order to build a digital state, digital economy and digital society, has officially started its work <21>.
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<20> Romanovsky V.G., Abubekerova D.A. Human rights, cybersecurity, the fight against terrorism (China's experience) // Nauka. Society. State. 2021. Vol. 9. N 3. pp. 57-67.
<21>
Summarizing the above, we can conclude that the "Smart Court" in China is a certain concept of digital transformation of the judicial system, which covers almost all areas of organization and activity. Moreover, it also applies to aspects of interaction with other bodies, both those providing justice and those in coordinating relations. The "smart Court" is an ideologeme aimed at the constant introduction of innovative technologies, the vector of modernization of the entire judicial system of China. The Official Communique of the Supreme People's Court of the People's Republic of China indicates that the "Smart Court" is the creation of a network, open and intelligent information system of the People's Court with the ability to process online all services defining the elements of the trial in accordance with the law, as well as providing comprehensive services to judges, participants in the trial <22>.
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<22> Supreme People's Court, "Opinions on Accelerating the Building of Smart Courts" (Judicial Document, April 12, 2017).
Such an integrated approach should be welcomed. In addition, digitalization, due to the universal coverage of social communications, has the properties to influence various aspects of public administration (in the broadest sense of the word). The use of innovations in the activities of the judiciary is not a one-step step. The rapid development of technology shows that transformations in government must take place continuously. Slowing down this process will lead to a lag, which should be assessed as an unfavorable factor in the conditions of global competition, where the states themselves are the participants in the competition (in the field of providing the best jurisdiction and public services). At the same time, the program documents adopted in the People's Republic of China emphasize that the concept of "Smart Court" is being implemented simultaneously with such programs as the digital economy and digital public administration. If we point to the connection with the digital economy, we additionally note that the introduction of the Internet court takes place primarily in those regions where clusters of international e-commerce are located. Thus, the inclusion of the court (state body) in the digital ecosystem is shown <23>. This approach is not typical for many countries, which significantly distinguishes China among those who are building a favorable investment climate.
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<23> Economic law: Textbook / N. Bondar, R. Amelin, D. Artemova, D. Velieva [et al.]; under the scientific editorship of N.S. Bondar. M.: Prospect, 2021. 352 p.
The introduction of the "Smart Court" concept is happening rapidly: almost all advanced innovations "from the wheels" are being tested in the justice system. This orientation forces all parts of the judiciary to participate in the digital transformation. The visible result - the occupation of advanced positions (a significant number of developed countries recognize their lag) determines a careful study of the experience of the People's Republic of China, its perception in Russian conditions. As in China, it is necessary to adopt a basic strategy for the digital transformation of the judiciary, highlighting the key areas:
- creation of an online court;
- development and implementation of digital intelligent assistants;
- expanding the capabilities of the GAS "Justice" and the Internet platform "Justice Online";
- introduction of the possibility of asynchronous legal proceedings;
- the use of technologies based on big data;
- network interaction of judicial authorities with other bodies promoting justice (which will also determine their digital transformation).
Each of these directions will lead to amendments and additions to Russian legal acts (and not only those defining the procedure of legal proceedings). In addition, digital transformation is impossible without appropriate technological developments, which will require synergy between representatives of the judiciary and engineering. Setting up digital interaction will require similar efforts in the Prosecutor's Office, the Ministry of Internal Affairs, the Investigative Committee, as well as the bar and the notary (this list is far from complete). Based on the strategy, it is necessary to adopt a "roadmap", within which specific steps for its implementation should be outlined. Let's add that the digital transformation of courts has global consequences for the entire system of government organization. This means that it is the courts that must become the leader in the reform process, which will pull up all other state bodies.
