Материал: Том 2 № 3
Цифровоеправо.Том2, №3, 2021, с.23–45 ЦзяньинСан/Разрешениеонлайнспоровсучастиемпотребителей:опытКитая
contact.45 Upona successfulconclusionof amediationagreement,the mediatorwillsummarize the written feedback on the “mediation information” of the Litigation Platform.
The mediation would usually last for fifteen calendar days. Proper postponement is allowed, nevertheless, with the consent of both parties. If two parties fail to settle in the mediation period, the case will enter the case-filing stage for approval and will be submitted to the case-filing judge forreview.46 47
Figure 3
Theonlinepre-trialmediationprocess47
Acceptance of an online case
Once the case has been submitted, the Hangzhou Internet Court would appoint a person specifically responsible for reviewing the case online. The court should review the litigation materials
45It should be noted here that, even though from Hangzhou Internet Court’s litigation documents, a video or audio form ofpre-trialonlinemediationisnotspecificallyindicated.However,article6ofthecurrentlyinprocesslegislation(Zuigao Renmin Fayuan Guanyu Renmin Fayuan Zaixian Banli Anjian Ruogan Wenti De Guiding (Zhengqiu Yijian Gao) ([Provisions of the supreme people’s court on several issues regarding online case hearing of people’s courts (draft)] (drafted by the Judicial Comm. Sup. People’sCt.,Jan.21, 2021))stipulatesthatonlinepre-trailmediationprocessinvideooraudioformshallnotberecorded by parties to the mediation process. Therefore, it could be inferred that, an online pre-trial mediation process can be proceededviavideooraudioform.
46Supra, n. 10, Article 7. In addition to the mediation process, negotiation, evaluation and arbitration are also available uponrequest,theOnlineDiversifiedDisputeResolutionPlatformprovidesotherkindsofout-of-courtdisputeresolution (https://yundr.gov.cn).
47Hangzhou Internet Court. Mediation Platform. Retrieved September 13, 2021 from https://hzhf.tiaojiecloud.com. Translationisprovidedbytheauthor.
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within seven (7) calendar days after the expiry of the online mediation and then decide whether toacceptitornot.48
Threeresultsmaybeledtobasedonthefact:
First, dismiss. If the plaintiff does not meet the conditions for filing a lawsuit or, after online notificationfromthejudge,theplaintiffraisesavalidobjection.Thecourtwilldismissthecasefiled.49 Second, return. If the case does not belong to the scope of acceptance, after online notification from the judge which the plaintiff has no objection towards; or, when additional materials are needed whereas the plaintiff fails to submit them within the time limit provided by law, an online
rulingofreturnwouldbemade.50
Third, acceptance. Once the Case-filing Division of the court has reviewed the case and decided that all the conditions are fulfilled, the court shall accept the case within the time limit required by law and issue the notice of acceptance of the case online. After the case has been accepted, the plaintiff and the defendant could see the litigation documents, such as the notice of the acceptance of the case or the notice of the response to lawsuits, the notice of evidence submission, thenoticeofrightsandduties,andanti-corruptionandsupervisioncardinanautomaticallygenera tedelectronicversion.51
Once the case has been accepted and filed, an automatic notice would be sent to the plaintiff to pay for the litigation fee within seven calendar days after the day of receipt. If the payment were unsuccessful, a notice would also be given, and the judge would verify the situation and treat thecaseaswithdrawal.Suchadecisionisavailabletobeviewedinthesystem.52
The same day as the case has been formally accepted, it would be sent online by the Casefiling Division of the Internet Court to the Information Management System of the People’s Court of Zhejiang Province, synchronously it would be put on the Litigation Platform online. The platform woulddistributethecasetothejudgeonthedaywhenitacceptsthecase.53
Responding to the Lawsuit and Defense
Upon receiving the case file information, the Litigation Platform will automatically send the case information, case linkage code, and the website of the Litigation Platform to the defendant through hisphonenumberprovidedbytheplaintiff.Whenthedefendanthasreceivedtheaforelistedmaterials, he could therefore respond to the lawsuit. All he needs to do is log in to the Litigation Platform andthenfinishtheidentityauthenticationbytypingthecaselinkagecodereceivedintothesystem.54
After the defendant has linked with the case, he could then file a response to the lawsuit and actively submit pieces of evidence during the period of defense and evidence submission. The defendant’sfailuretodefendorsubmitevidencedoesnotaffectthetrialprocessofthecourt.
If the defendant has any objection to the jurisdiction over the case, he could raise this objection duringthedefenseperiod.Thecourtshallreviewtheobjectionraisedbytheparties.Iftheobjection
48Supra,n.10, Article 8.
49Supra,n.10, Article 10.
50Supra,n.10, Article 11.
51Supra,n.10, Article 12.
52Supra,n.10, Article 13.
53Supra, n. 10, Article 14. Besides, although in general all the cases submitted and accepted shall be trial online, for those complicated cases or other cases that are not suitable for a trial in the Litigation Platform, they would be transferred tothecourtforatrialoffline.
54Supra,n.10, Article 15.
36 ESSAYS
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is established, the case shall be ordered to be transferred to a people’s court with jurisdiction; if not, the court shall rule to reject the objection.55 After the objection to the jurisdiction procedure is finished,thecourtwillresettheevidencesubmissiontime.56
Evidence
Online Evidence Exchange
Where Internet courts organize the online exchange of evidence, the parties shall present evidenceonlinebyuploadingelectronicdataandimportingitintothelitigationplatformoruploading ittothelitigationplatformafterdigitalizingitthroughmethodssuchasscanning,photographing,or recording, and may also use electronic data that has already been imported to the litigation platform to prove their viewpoints.57 In general, physical evidence shall be requested to be sent by mail to the judge before the trial process. The time limit of online evidence exchange is the same as the time limit of the offline process. According to the simple procedure, the time limit of evidence submissionisfifteen(calendar)days.58
Online Cross-Examination
Once the online evidence exchange period has been expired, the system will automatically or manually move to the cross-examination process. The court will guide the parties to express their positionsaboutevidenceonlinebeforethetrial.Thepartiescouldclickonthecheckboxtoapprove or disapprove of the authenticity, legitimacy, and relevance of evidence through the system. A supplementaryexplanationoftheprobativeforceoftheevidencecouldalsobesubmitted.59
Verification of the Authenticity of Evidence
An online dispute usually involves two kinds of evidence: the evidence materials in paper (such asdocumentaryevidence,appraisalopinions,orinquestrecords)andtheevidencematerialsinform of electronic data. The latter one can be directly uploaded by parties to a dispute, whereas the first situation will be different. If the evidence is in paper form, it shall be digitalized by parties before submission.
Both digitalized paper evidence and evidence in form of electronic data are much easier to be modified compared to evidence in pure paper formation. Thus, when a party doubts evidence falsification, he is entitled to the right to raise objections to the authenticity of the evidence submitted. theInternetcourtsshallverifytheauthenticityofthatevidence.
This verification process proposes different requirements regarding the type of evidence in dispute.Forevidenceinpaperformthathasbeendigitalized,theInternetcourtsshallrequesttheparty whosubmitthatevidencetoprovidetheoriginals.60
For evidence in the form of electronic data, the Internet courts shall review and assess the authenticityofelectronicdata’screation,collection,storage,andtransfer.Iftheauthenticityoftheevidencecanbeverifiedviaelectronicsignatures,reliabletimestamps,hashvalueschecks,blockchain,
55Supra,n.15, Article 127.
56Supra,n.10, Article 16.
57Supra,n.14, Article 9.
58Supra,n.10, Article 25.
59Supra,n.10, Article 26.
60Supra,n.14, Article 10.
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and other technological methods for collecting, fixing, and preventing alteration of evidence; or can be verified through the electronic evidence collection and storage platform.61 The authenticity oftheevidenceinsuspicionshallbeconfirmedbytheInternetcourts.62
Additionally, parties may apply for persons with specialized knowledge to submit comments on electronic data techniques. Internet courts may retain an evaluation of the authenticity of electronic data or collect other relevant evidence for comparison, based either on the application ofthepartiesoritsauthority.63
Trial Process
Pre-Trial Preparation
Uponconfirmationofdeliverybythedefendant,orafterthepartieshavecompletedthecross-ex- aminationprocess,thejudgecouldschedulethetrialprocedure.64 Anonlinepre-trialmeetingcould bearrangedbasedonthefactsofthecase.Ithasthefunctionasfollows:
1. Verify parties’ identities, give notice of rights and obligations, give an announcement about courtroomdiscipline.
2. Theexchangeofevidencefrombothpartiespromotesthepartiestoreachanagreementupon uncontestedfactsand,therefore,determinethedispute’sfocusinadvance.
Those afore listed processes that have been done before the trial procedure could be skipped duringthetrial.Evidencethatisnotincontentiondoesnotneedtobepresentedordebatedagain.65 Therefore, the online trial could be simplified, which could respond to the demand for efficiency requiredbyonlinetransactionsanddisputeresolution.
Besides,tohelpmaintainthetrialprocess’soperation,anonlinepre-trialtestwouldbeheld.The technicians will make sure that the Internet conditions, equipment, and the places used by each party are suitable for the online trial. Each party will be kept in contact with for an online pre-trial test, and, if necessary, technical support would be provided.66 The pre-trial test is an indispensable procedure in the online trial process. Except where it is found to be due to the network failure, equipment damage, power outages, or force majeur, where parties do not punctually participate in online hearings, it is to be viewed as “refusal to appear at court”; and where they leave without authorization,itwillbeviewedas“leavingcourtduringaproceeding”.67
61These platforms are operated via a neutral third party, that platform will obtain and fix the existing target evidence in electronic form. These platforms will also store the fixed electronic data to confirm that the data has not been tampered and remains intact. The standards and criteria these platforms shall abide by in the process of verification of the evidence in form of electronic data is regulated in article 17-19 of Supra n. 13, and article 93 of Zuigao Renmin Fayuan Guanyu Minshi Susong Zhengju De Ruogan Guiding, Fashi [2019] Shijiu Hao (2019 19 ) [Some provisions of the supreme people’s court on evidence in civil procedures, No.19 [2019]](promulgatedbytheJudicialComm.Sup.People’sCt.,Dec.06, 2001, modifiedOct.14, 2019, effective May 01, 2020)Sup.People’sCt.Gaz.,Dec.25, 2019, http://www.court.gov.cn/zixun-xiangqing-212721.html(China).
62Supra,n.14, Article 11.
63Supra,n.14, Article 11.Supra,n.13, Article 19.
64Supra,n.10, Article 27.
65Supra,n.14, Article 13.
66Supra,n.10, Article 29.
67Supra,n.14, Article 14.
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Online Trial
Start the Procedure
Automaticnoticeof“enterthetrial”willappearwhenthetrialprocessbegins.Boththejudgeand partiescouldgetaccesstotheonlinetrialbysimplyclickingthatbutton.Thejudgewouldfirstverify the parties’ identities, then by clicking “start the trial”, video recording starts, the online trial will officiallybegin.Thejudgecanclickonthe“adjournment”buttonifneededduringthetrialprocedure. Oncethetrialprocedurehasbeenfinished,thejudgewouldclickonthe“adjournment”button.The videorecordingwillstop,whereasthepictureofeachpartywouldappearcontinuously.68
Procedure on-going
The online trial process is relatively flexible than the offline one. In general, the trial procedure consists of different steps: party statements, court investigation, and courtroom debate. While in an online trial, those steps may be conducted together with the parties’ consent. Besides, for cases that the facts are clear (simple cases), hearings may be conducted directly revolving around the litigation demands rather than be restricted by the procedural order of the trial process. For those cases that the elements and key points thereof are relatively centralized, hearings may be conducteddirectlyrevolvingaroundthecaseelements.69
End-up the Procedure
When the hearing has been finished, the court clerk will upload the transcripts with the system’s support. The parties could read and check the transcripts online. Modifications and correctionscouldbemade,uponrequestoftheparties,whenitisnecessary,throughthelivevideo.Upon click of the button “confirm” by each party, the court clerk would save the transcripts. Accordingly, the whole trial process would be finished once the judge has clicked the “end of trial” button, all thepartiesmayleavetheonlinetrialcourt.70
Technical methods are adopted for the benign operation of the trial procedure. The entire procedureofanonlinetrialisaudiotapedandvideotaped.Ifthefactofthecaseisrelativelyclearwith little controversy, the court clerk may absent himself from the trial once the preparation work has been done.71 Besides, another technology is also adopted to facilitate the trial procedure, the intelligent voice recognition system. Transcripts would be used as the trial record and can be confirmed by the parties by clicking on the button.72 After the electronic records are checked and confirmed throughonlinemethods,theypossessthesameforceaswrittenrecords.73
Online Announcement and Judgment Making
The judge can announce the judgment in court by the end of the trial procedure. Civil cases that adopt small claim procedure, and civil and administrative cases that adopt the simplified
68Supra,n.10,Article32.
69Supra,n.14, Article 13(3).
70If the trial transcripts are replaced by audio or video recordings, the trail judge and judicial assistant shall keep all therecordingsonfile.Afterthejudgeclickonthe“endofthetrial”button,allthepartiesmayleavethetrialcourt.(Supra, n.10,Article32)
71Supra,n.10,Article33.
72Supra,n.10,Article34.
73Supra,n.14, Article 20.
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