[Photo/Xiao Yang]

On 17 June 2021, the Supreme People's Court ("SPC") held a press conference to announce the release of the Rules of Online Litigation of People's Court ("the Rules"). The Rules are judicial interpretations formulated by the SPC and have legal effect, which will apply to more than 3,500 courts across the country and take effect on 1 August 2021.

The China Academy of Information and Communications Technology published the White Paper on China's Digital Economy Development in April 2021. It shows that as of December 2020, the size of China's digital economy was close to 40 tril lion yuan, accounting for 38.6% of the country's GDP growth. The number of online shopping users in China reached 782 million, the country's online retail sales ranked the first in the world for 8 consecutive years, and the utilization rate of online payment has reached nearly 90%.

Stepping into the 21st century, Chinese courts have started to explore the application of digital technology in judicial practice because China's digital economy is developing so rapidly that it urges the development of the rule of law in the cyberspace. From online case filing, electronic case files, online payment and video hearings, to establishing the first internet court in the world and using blockchain to store evidence, Chinese courts have been continuing to broaden the scope of applications of online litigation.

The sudden appearance of the COVID-19 pandemic affected how to conduct litigations worldwide, including China. Under the promotion and guidance of the SPC, Chinese courts moved online right after the outbreak. Soon, online litigation has become the main approach for the public to get access to the judicial system. From 1 January 2020 to 31 May 2021, 12.19 million cases were filed online, accounting for 28.3% of the total number of the cases filed; 1.28 million online hearings were conducted, taking an average of 42.34 minutes for each hearing; as for court-referred mediation, 6.51 million cases were mediated online and 6.14 million cases were successfully mediated in the pre-trial state.

To further regulate online litigation, the SPC enacted the Rules of Online Litigation of People's Court based on the practice of Hangzhou Internet Court, Beijing Internet Court and Guangzhou Internet Court, and the suggestions of domestic judges, scholars, lawyers and Internet enterprises.

The Rules have 39 articles in total, covering the legal validity, basic principles, applicable scope and applicable conditions of online litigation. They give guidance on how to conduct particular litigation activities online, such as online case filing, online court-referred mediation, online exchange of evidence, online hearings, online judgment announcement and online enforcement.

Specifically, the Rules the SPC released today:

Propose the basic principles for online litigation for the first time: The Rules propose 5 basic principles for online litigation that online litigation should be impartial and efficient, legal and optional, right-protection oriented, convenient for the people, and safe and reliable. The Rules are applicable to a wide range of cases, including all civil and administrative cases, all special procedure cases, all enforcement cases, some session of commutation and parole cases, and some session of criminal cases that use the fast-track sentencing procedure. Significantly, the consent of the parties is put in the first place as the Rules honor the parties' choice on whether to use online or offline litigation. Only cases that successfully obtain the parties' consent and the parties have the correspondent technical skills would proceed online. The whole session or part session of litigation can switch from online to offline when certain conditions, including acquiring the parties' consent, are met. Besides, the Rules value the importance of data security and data privacy. With the exception of data defined as public which is accessible to the public, no one shall disclose, spread or use the data generated during online litigation, and if a violation is criminally punishable, the offender shall be held criminally liable in accordance with the related law.

Confirm the legal validity of electronic documents and clarify the correspondent standard of review: The Rules confirm that an electronic document shall be regarded as the equivalent of an original document if it complies with admissibility requirements prescribed by the Rules. The parties can use the admissible electronic documents during the whole process of an online litigation without the trouble of providing the original copies. It not only brings substantial convenience to the people, but also considerably lowers the cost of litigation. Moreover, the Rules demand courts to review the formality authenticity and the content authenticity of electronic documents with different standards to ensure the admissibility of electronic evidence in online litigation.

Affirm the scope of validity of blockchain evidence and clarify the correspondent standard of review: Based on the characteristics of blockchain technology, the Rules presume that electronic evidence recorded on blockchain has not been tampered with. The Rules further illuminate how to review the authenticity of electronic evidence recorded on blockchain and how to determine whether any electronic evidence has already been altered before being registered on blockchain. It is believed that blockchain evidence will bring greater transparency, enhanced security, improved traceability, and increased efficiency for online litigation in China. Obviously, the Rules are laying the very foundations for recognizing the authenticity of blockchain evidence in court, which is a major breakthrough even in the world.

Establish comprehensive rules and procedures applicable to online hearings: The Rules consist of a comprehensive set of rules and procedures that help the parties to participate in online hearings. The Rules explicate the procedures of identify authentication that the parties shall register in the online litigation platform first and the courts shall verify the authentication of the parties' identities. After the verification, the parties would receive an exclusive account for logging into the platform, and except for situations where evidence could prove that the account had been stolen or a system error had occurred, any acts conducted on the platform logged into with the exclusive account shall be deemed as acts conducted by the account owner. Furthermore, the Rules define the etiquette for online hearing with details. Losing Internet connections once or twice, coming across an unexpected electricity interruption or an outrage-interrupted phone call, and suffering from a sudden equipment trouble or other force majeure, will all be tolerated by courts. However, parties who fail to appear at an online hearing without due cause will be regarded as failure to appear in court and be punished, and parties who leave a virtual courtroom without permission, after being reminded and warned by the court, will be treated as leaving the courtroom during a court session without permission and also be sanctioned. Other major rules and procedures include but are not limited to the applicable conditions of online litigation, the mechanism for the parties to switch between online litigation and offline litigation, online hearing openness, and the procedure for witness and expert participation in online litigation.

Confirm the legal validity of online asynchronous trials and online asynchronous court-referred mediations: For the convenience of the people, the Rules allow online asynchronous hearings and online asynchronous court-referred mediations subject to a few requirements. Generally, the parties are permitted to exchange evidence, investigate and question, and conduct other activities during an online litigation. The parties whose cases are applicable to the summary procedure or are small claims are further authorized to participate in online hearings in the form of video recordings of the counsel's opening statements, for instance. Nevertheless, an online asynchronous trial remains to be a special form of trial and has not become a widely accepted normalization, so do online asynchronous court-referred mediations.

In addition, the Rules also clarify the procedures for other litigation activities online, such as online filing, online responding, electronic records, electronic case files, online criminal hearings, and online enforcement.