Development dilemma and solutions to online civil litigation in China: Kyrgyzstan experience

Actual problems of development of online civil proceedings in scientific doctrine

M. Garcia-Alberti et al. (2021), M. Toqmadi and N. Zakharchenko (2021), and B. Kaczmarek-Templin (2023) note that when analysing the impact of information technology on the principles of justice, it is necessary to respect the inviolability of fundamental principles of law, including the principles of procedural law. Technology should be considered as a tool for solving the problems of justice, and not as an end in itself. Undoubtedly, it is important to respect the inviolability of fundamental principles of law, including principles of procedural law, when analysing the impact of information technology on the justice system. However, it should also be considered that modern technologies have the potential to significantly improve the process of justice and increase its efficiency. Considering them as a tool does not exclude their role as a means to achieve fairer and more accessible justice.

The emergence of public online courts and tribunals designed to resolve small civil disputes can improve cost efficiency and streamline formal adversarial court procedures while preserving the necessary procedural safeguards. Thus, according to I. Gras, the unique characteristics of Internet communications and the digital environment provide an opportunity to create a more accessible and convenient justice system, providing personalised legal solutions and contributing to reducing the duration and cost of litigation, as well as simplifying legal proceedings (Gras, 2021). In the context of modernity, information technologies can indeed significantly reduce the time and cost of litigation, increase transparency, and improve access to justice. They can also improve the efficiency of judicial decisions by providing judges and lawyers with tools to analyse evidence and conclusions more accurately. By automating and analysing data, technology can facilitate better compliance with procedural rules and standards.

In recent years, the Chinese government and its judiciary have made a policy decision to actively utilise AI as part of judicial reforms. This approach is unique to China and is due to the chronic challenges faced by the courts in the country, such as a dramatic increase in the number of cases and a shortage of skilled personnel in the judiciary. As a result, pilot programmes have been launched across the country to develop various AI systems that have been applied to different aspects of the judicial system. Some of these systems aim to improve mechanical processes, such as transcription and document analysis, to increase efficiency. Others, more ambitious projects, aim to use AI to make decisions. Therefore, we should agree with the thesis of M. Sari (2021), N. Wang and M.Y. Tian (2023) that we should not consider information technology and the principles of justice as mutually exclusive factors, but rather learn to integrate technology into the legal system in a way that respects the fundamental principles of law to achieve a fairer, more efficient, and accessible justice.

Based on the opinion of many scholars, including G.G. Zheng (2020) - China is currently moving towards the creation of a system of case law based on algorithms, which eliminates the need for preliminary decisions, but considers statistically detectable patterns. H. Fan and F.L.F. Lee (2021) emphasised that live streaming of court proceedings allows ordinary Chinese citizens to have additional means to monitor and understand the work of courts. However, it is important to realise here that despite the proximity of judges, this does not necessarily mean true openness and attention to public opinion. The decision on which particular case to broadcast live is left to the discretion of the authorities, and the official practice of live broadcasting does not always favour active public participation. It is important to note that even in liberal democracies, trials do not always depend on public opinion.

According to T. Grieshofer (2023), current improvements in the digitalisation of court proceedings are still limited in certain aspects. The main barrier for court users in the early stages of proceedings remains communication problems, including translation of passages with grammatical and lexical difficulties, persistent difficulties with definitions and insufficient support for court users in creating their documents. Therefore, ignoring the information needs of lay court users results in complex legal discourse developing in an environment where lay litigants remain on the periphery. In this context, the position of T.S. Hamad and T.M.F. Al-Sarraf (2023) that modern litigation tools save effort, time and resources and optimise notification processes is correct. This contributes to the reduction of the negative effects associated with traditional notification methods that slow down litigation processes.

Online hearings greatly simplify the conduct of proceedings in favour of the parties and contribute to a more systematic flow of proceedings. These advantages may extend not only to court proceedings but also to non-judicial proceedings, such as cases of acquisition, division, inheritance, and dissolution of inheritance of joint property, where participants located abroad can participate. However, according to some scholars (Fibinger-Jasinska, 2022), they should remain an exception and courts should mostly stick to traditional hearings. In practice and from a theoretical perspective, it is possible to consider all types of civil cases online, provided that the requirements of the platform and the participants in the process are met. The civil procedure legislation can be amended accordingly to provide for the online method as an additional option for the parties. However, it should be emphasised that the integration of information technology into court proceedings should not be merely an attempt to follow fashionable trends or demonstrate technological excellence. Its goal should be to ensure fairness, impartiality, and timeliness of resolution of civil cases, as well as effective protection of violated, unrecognised or contested rights, freedoms or interests of individuals and legal entities, as well as the interests of the state. Nevertheless, in scientific doctrine, there are concerns related to some aspects of this approach. Thus, C. Shi et al. (2021) among other concerns highlights issues related to automatic decisions, digital issues of power-sharing, independence of the judiciary, as well as issues related to privacy and data protection.

The aims and objectives of civil justice remain unchanged, and the introduction of new technologies should be aimed at achieving them more effectively. It is important to remember that if at a certain stage, it is not possible to fulfil these objectives and goals exclusively through new means, changes that may violate the constitutional principles of the judiciary should not be rushed. Therefore, technology should serve judicial activity while preserving its essence, and the focus should be on transforming the form rather than the essence of justice.

In this context, it is necessary to consider the works of the English scholar R. Susskind (2019) in more detail, who has become widely known in the context of electronic court proceedings and online proceedings. R. Susskind (2019) has received special attention after the release of his book “Online courts and the future of justice”. This book focuses on the use of online courts as a means to increase access to justice and provide better judgements. R. Susskind (2019) raises important questions about whether court services should be seen as mere service delivery or as a place to inspire and work for everyone. He argues that the introduction of technology will open up new ways of resolving disputes and providing access to justice for citizens. In addition, R. Susskind (2019) views the future and predicts that the first generation of online courts, where decisions are made by humans, will be replaced by a second generation where AI techniques will play a greater role in decision-making.

He also raises ethical questions about the extent to which machines can provide judicial decisions following the rule of law, and whether the role of judges can be supported or replaced by AI. The development and implementation of new technologies in the judicial system implies not only changes in the technical field but also requires the adaptation of doctrinal provisions of the science of civil procedure law, especially in terms of judicial proof. These changes are aimed at facilitating and improving the efficiency of evidentiary activities in court proceedings.

However, the views of scholars on the introduction of information technologies differ. Thus, for example, M. Giacalone and S. Salehi (2022) express high appreciation of the introduction of this practice and argue that courts should actively use all advanced methods of research and analysis of digital evidence to ensure the correct resolution of civil disputes. At the same time, N.T.H. Nhung et al. (2021) take a more moderate position and believe that when investigating theoretical issues of digital evidence, it is necessary to rely on the theory of evidence without making radical changes in the doctrine of evidence in civil proceedings. Consequently, when analysing new means of proof in electronic form, it is necessary to consider not only the specificity and features of applied information technologies but also the need to determine the limits of changes in the process of proving, taking into account the basic provisions of evidence law and principles formed over the centuries to ensure a truly fair trial.

Thus, modern science is increasingly scrutinising various aspects of evidence, which are undergoing changes under the influence of the development of social relations, changes in scientific and practical understanding, changing priorities of legislators, the tasks faced by legal proceedings and trends in the development of legal norms. The digital age contributes by not only providing new means that are already actively used in judicial practice but also by raising questions about possible means that may be applied in the future to achieve the goals of civil proceedings. It should be noted that when researching the impact of information technology on judicial processes, it is necessary to clearly define the scope of its application to avoid distortions in court cases. Particular attention should be paid to analysing new means of electronic evidence. In doing so, it is necessary not only to consider the specificity and the peculiarities of the applied information technologies but also to determine the limits of changes that can be introduced into the process of proving following the principles and foundations of evidentiary law that have developed over the centuries to ensure a truly fair trial. Indeed, this is how AI can be used to develop automatic decision-making systems. However, such systems can only be used in cases where the issues are not in doubt among the parties and are factual or do not depend on value judgements, such as fines for traffic offences. In cases involving complex facts and value choices, decisions can only be made by human intelligence. AI can serve an auxiliary purpose, but the final decisions always remain in the hands of human judges.

To successfully integrate China's experience in the field of online civil litigation into the system of Kyrgyzstan, it seems necessary to make significant changes in the national legislation. First of all, it is advisable to develop and implement legislative acts that would establish clear norms and standards for digital court proceedings, including the definition of procedures, rights and obligations of all participants in court proceedings. Such norms should aim to ensure the transparency and legitimacy of judicial processes, as well as to guarantee equal opportunities for access to justice for all participants. In parallel, mechanisms should be developed and implemented to ensure the protection of data and personal information of litigants, taking into account global standards of cybersecurity and privacy. An integral part of this process is the establishment of a specialised body or authority responsible for coordinating and supervising online civil proceedings, which also needs to be enshrined in legislation. This body will have to organise and conduct training for judges, lawyers and other judicial actors to ensure that they are ready and competent to use digital tools. Modern information technology and digital tools, including e-filing and court notification systems, should be actively introduced to ensure compatibility with the existing infrastructure. Finally, an extensive information campaign should be provided for in the legislation to raise public awareness of the benefits of online civil proceedings and its rules and procedures for use. Legislative changes based on the above recommendations contribute to the successful integration of online civil proceedings into the judicial system of Kyrgyzstan, ensuring increased efficiency and accessibility of justice for citizens.

For further research, it is important to look more deeply into the technical and legal aspects of implementing digital solutions, as well as to conduct a comparative analysis between the Chinese and Kyrgyz experiences to identify key lessons and recommendations for the successful adaptation of such systems in Kyrgyzstan.

Conclusions

The experience observed in China demonstrates the success of online courts. In this system, cases are dealt with in a short time frame, litigation costs are reduced, and simple cases are resolved through informal proceedings. It is possible that similar online courts, inspired by the Chinese experience, could serve as a model for increasing the efficiency of litigation and reducing the costs of litigation participation. With judicial reform that separates complex and simple cases and gradually improves the system of online trial rules, online civil litigation will continue to play a meaningful role in the post-pandemic era.

The challenges associated with the implementation of e-judicial proceedings stem from the ambiguity of the objectives and outcomes of the process. It is important to investigate the stages, characteristics, content, and main drivers of e-judicial implementation in other countries, especially those with significant achievements or unique features in this field. This experience can be adapted and applied in the domestic context, considering the economic, human, and legal realities. It is important to clearly define the following aspects: implementation objectives; availability of resources; functionality to be implemented first and incentivise its use through various procedural and non-procedural measures.

The state has the right and duty to set specific requirements for technological aspects in the judicial sphere while ensuring a balance between technological neutrality and strict limitations. In some cases, a more flexible approach to the choice of technology should be adopted, such as in the use of simple electronic signatures in transactions and their ability to be considered as evidence in court proceedings. However, in areas where the nature of the proceedings and their security require special concerns, comprehensive lists of permissible technological solutions should be developed.

The integration of information technology into the process of forensic evidence does not change the fundamental principles of evidence theory. Rather, it requires their refinement and adaptation to new realities. It is important to emphasise that electronic court proceedings should not be a barrier to access to justice. The concept of facilitating access to justice includes the digitalisation of court procedures and the use of information and telecommunication technologies. It also includes the introduction of remote alternative dispute resolution methods, such as online mediation and online conflict resolution systems. These alternatives include various ways such as information on alternative dispute resolution options, automated form-filling, e-consultations, the possibility of engaging experts online and online discussion of conflict situations, and so on.

References

1. “Roadmap” for implementation of the digital transformation concept “Digital Kyrgyzstan 2019-2023”. (2023).

2. A brief introduction of China International Commercial Court. (2018).

3. Administrative Procedure Code of the Kyrgyz Republic. (2017, January).

4. AIS of the Court - Automated Information System of the KR District Court. (2016).

5. Chinese Courts and Internet Judiciary. (2019).

6. Chinese courts use blockchain electronic locks to seal properties for evidence. (2020).

7. Civil Code of the Kyrgyz Republic. (1996, May).

8. Code of Civil Procedure of the Kyrgyz Republic. (2017, January).

9. Decree of the Government of the Kyrgyz Republic No. 179 “Instruction on the Procedure for Notarial Acts Performed by Notaries of the Kyrgyz Republic”. (2011, April).

10. Decree of the President of the Kyrgyz Republic No. 221 “On the National Development Strategy of the Kyrgyz Republic for 2018-2040”. (2018, October).

11. Du, G., & Yu, M. (2019). A close look at Hangzhou Internet Court: Inside China's Internet Courts Series-06.

12. Fan, H., & Lee, F.L.F. (2021). Judicial visibility under responsive authoritarianism: A study of the live broadcasting of court trials in China. Media, Culture & Society, 41(8), 1088-1106.

13. Fibinger-Jasinska, J. (2022). Implementation of the right to court and conducting remote hearings in civil proceedings. Scientific Journal of Bielsko-Biala School of Finance and Law, 26(4), 118-121.

14. Gander, K. (2015). Neil Moore: Con artist jailed for escaping from prison by sending staff a fake email.

15. Garcia-Alberti, M., Suarez, F., Chiyon, I., & Mosquera Feijoo, J.C. (2021). Challenges and experiences of online evaluation in courses of civil engineering during the lockdown learning due to the COVID-19 pandemic. Education Sciences, 11(2), article number 59.

16. Giacalone, M., & Salehi, S. (2022). Small claims and the pursuit of (digital) justice: A tiered online dispute resolution perspective. Revista Italo-Espanola de Derecho Procesal, 1, 181-213.

17. Gras, I.O. (2021). Online courts: Bridging the gap between access and justice. Journal of Law and Jurisprudence, 10(1), 24-51.

18. Grieshofer, T. (2023). Court forms as part of online courts: Elicitation and communication in the early stages of legal proceedings. International Journal for the Semiotics of Law, 36(4), 1843-1881.

19. Hamad, T.S., & Al-Sarraf, T.M.F. (2023). The role of electronic notification in accelerating the litigation proceedings in civil lawsuits: A comparative study. Journal of Law and Sustainable Development, 11(4), article number e584.

20. Ibiraiym kyzy, A., Akmatov, D.A., & Duishenaliev, Zh.S. (2021). E-learning in the education system of Kyrgyzstan. Science, New Technologies and Innovations in Kyrgyzstan, 3, 234-237.

21. Instructions on the use of the System of audio and video recording of court hearings and provision of materials of audio and video recording of court hearings to trial participants and their representatives. (2018, December).

22. Kaczmarek-Templin, B. (2023). The smart contract - problems with taking evidence in Polish civil proceedings in the light of European regulations. Bratislava Law Review, 7(1), 65-76.

23. Karypov, B. (2020). Informatization and digitalization of law-making activity in the Kyrgyz Republic. Bulletin of Science and Practice, 6(8), 210-215.

24. Kuldysheva, G., Minbaev, S., Paraidinuulu, S., Mirzaeva, A., Atantaev, A., Rustam, M., Amanbek, K., Abdullaeva, Z., & Toktobaeva, E. (2021). Kyrgyz customary law development. Open Journal of Social Sciences, 9, 321-327.

25. Law of the Kyrgyz Republic No. 153 “On State Registration of Rights to Immovable Property and Transactions Therewith”. (1998, December).

26. Law of the Kyrgyz Republic No. 70 “About Notariate”. (1998, May).

27. Law of the Supreme People's Court No. 49 “On Regarding Strengthening and Standardizing During the Prevention and Control of the New Coronavirus Epidemic”. (2020, February).

28. Nhung, N.T.H., Hai, H.T.N., & Sang, L.M. (2021). E-Court in resolving civil cases - foreign experiences and recommendations for Vietnam. VNUHCM Journal of Economics, Business and Law, 5(3), 1733-1740.

29. Norkus, R. (2015). The filtering of appeals to the Supreme Courts.

30. Online Litigation Rules of the People's Courts. (2021, May).

31. Order of the Supreme Court of the Kyrgyz Republic “On Approval of the Regulations on the Use of Videoconferencing in the Courts of the Kyrgyz Republic”. (2020, July).

32. Sari, M.I. (2021). Legal aspect of online arbitration in European Union and China. Law Review, XIX (2), 222-245.

33. Semenov, N.S. (2022). Legal problems of establishing information relations in the electronic justice of the Kyrgyz Republic. Herald of KRSU, 22(3), 104-110.

34. Shi, C., Sourdin, T., & Li, B. (2021). The smart court - a new pathway to justice in China? International Journal for Court Administration, 12(1), 4.

35. Stern, R., Liebman, B., Roberts, M., & Wang, A. (2021). Automating fairness? Artificial intelligence in the Chinese Court. Columbia Journal of Transnational Law, 59, 515-553.

36. Supporting digitalisation in Kyrgyzstan. (2021).

37. Supreme People's Court. (2022a). Opinions of the Supreme People's Court on strengthening blockchain application in the judicial field.

38. Supreme People's Court. (2022b). Work Report of the Supreme People's Court of the People's Republic of China.

39. WorkReportoftheSupremePeoplesCourtofthePeoplesRepublicofChina.docx.

40. Susskind, R. (2019). Online courts and the future of justice. Oxford: Oxford University Press.

41. Toqmadi, M., & Zakharchenko, N. (2021). I agree to terms and conditions: Negotiating privacy online in Central Asia. JeDEM - EJournal of EDemocracy and Open Government, 13(1), 71-100.

42. Tuibaev, R.J., & Egeshova, A.K. (2021). Problems of improving civil proceedings in the Kyrgyz Republic. Izvestiya Vysshih Uchebnyh Zavedeniy Kyrgyzstana, 2, 143-146.

43. Wang, N., & Tian, M.Y. (2023). “Intelligent justice”: Human-centered considerations in China's legal AI transformation. AI and Ethics, 3, 349-354.

44. Zheng, G.G. (2020). China's grand design of People's Smart Courts. Asian Journal of Law and Society, 7(3), 561-582.

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