About the author: Shen Kui, Professor at Peking University Law School, Doctoral Supervisor.
On February 27, 2024, the “Case Library of the People’s Court” (hereinafter referred to as the “Case Library”) was officially launched and opened to the public. The Case Library collects authoritative cases that the Supreme People’s Court considers to have reference and demonstration value for similar cases, including guiding cases and reference cases. As authoritative cases that have been reviewed and issued by the Supreme People’s Court with reference and demonstration value, the current number of cases included in the Case Library is 3,711.
It is worth mentioning that the Supreme People’s Court is building a total of three case databases. In addition to the Case Library, there is also the “China Judgment Documents Network” (hereinafter referred to as the “Judgment Documents Network”), which was launched on July 1, 2013, and is open to the public, as well as the “National Court Judgment Documents Library”, which is used within the dedicated network of the four-level courts nationwide to provide a basis and reference for formulating judicial policies, promoting judicial reform, and making judicial suggestions. Due to its use within the internal network, the National Court Judgment Documents Library is not related to judicial openness.
Comparing the Case Library and the Judgment Documents Network, the latter has already exceeded a total of over 100 million documents, while the former is clearly not on the same scale. More importantly, the judgment documents on the Judgment Documents Network are “authentic”, exactly the same as the judgment documents obtained by the parties from the court. The authoritative cases in the Case Library, on the other hand, have been edited, and a lot of information has been intentionally “filtered”, including information that is helpful for evaluating the “right and wrong” of court judgments. Undoubtedly, the Case Library is of great significance for promoting the unification of judgment rules and standards, avoiding “different judgments for the same case”, and ensuring the correct and unified application of the law. This is a function that the Judgment Documents Network, which simply uploads judgment documents as they are, cannot achieve. However, the limited selection of cases in the Case Library cannot meet the real needs of the people for judicial openness like the Judgment Documents Network.
Since 2016, the Judgment Documents Network has added more than 9 million documents each year. In 2020, the number of newly disclosed documents reached a peak of 28.13 million, but the number of newly disclosed judgment documents has shown a downward trend since then. Especially from January to December 22, 2023, the number of judgment documents disclosed online was only 5.11 million (Southern Metropolis Daily). The decline in the function of the Judgment Documents Network has caused widespread concern and discussion among the public at the end of 2023. People couldn’t help but ask: Where is the disclosure of judgment documents going?
The disclosure of judgment documents seems to simply involve publishing the judgments already made by the court online, but it is actually the bottom-line requirement of governing the country according to the constitution, and it is related to the implementation of multiple provisions, principles, and values of the Constitution of the People’s Republic of China.
First, Article 2, Paragraph 1 of the Constitution stipulates: “All power of the People’s Republic of China belongs to the people.” This is a manifestation of the principle of popular sovereignty. And only when the people are fully informed of the operation of public power institutions (including but not limited to the courts) can they truly enjoy the status of being the masters of the country. The well-known Bacon’s famous saying “Knowledge is power” can actually be translated as “Knowledge is power”. Obtaining information and being informed can fully empower and empower the people. It is hard to imagine that the people, who only know the good things done by public servants but not all of their actions, can become true sovereigns.
Second, the ways and forms in which the people exercise sovereignty are diverse, among which, the supervision of public power institutions by the people is an important way to realize people’s democracy. Article 27, Paragraph 2 of the Constitution stipulates: “All state organs and state functionaries must rely on the support of the people, maintain close contact with the people, listen to the opinions and suggestions of the people, accept the supervision of the people, and strive to serve the people.” Article 41, Paragraph 1 stipulates: “Citizens of the People’s Republic of China have the right to criticize and make suggestions to any state organ and state functionary; they have the right to lodge complaints, accusations or reports to the relevant state organs against any illegal or dereliction of duty of any state organ and state functionary.” If judgment documents cannot be fully disclosed, how can the people’s supervision be discussed? How can the people’s criticism, suggestions, complaints, accusations or reports be discussed?
Furthermore, Article 33, Paragraph 2 of the Constitution stipulates: “All citizens of the People’s Republic of China are equal before the law.” Accordingly, citizens enjoy a basic constitutional right, namely, the right to equality. In similar or similar cases, they should obtain the same or similar judgments from the court, regardless of the location or level of the court. This is the inherent meaning of the right to equality. The Case Library publishes guiding cases and reference cases, which is beneficial for promoting the unification of court judgments. However, considering the limited number of cases in the Case Library, if the judgment documents are not fully disclosed, how can the parties judge whether they have been treated equally, and how can ordinary people know the degree of realization of “same case, same judgment” nationwide?
Finally, Article 130 of the Constitution clearly defines the principle of open trial, that is, “People’s courts shall conduct trials in public, except in special circumstances as provided by law.” Judgment documents are the results of the court’s trial of cases. If the court only discloses the case trial to the society in accordance with the law, but does not disclose the trial results, it is difficult to be considered to be in line with the original meaning of the constitutional principle of open trial. Open trial is the disclosure of the whole process, just as people’s democracy should also be the whole process.
The constitutional significance and value of the disclosure of judgment documents have been revealed. In addition, this system has other recognized functions: First, “sunshine is the best disinfectant”, the disclosure of judgment documents is conducive to preventing judicial corruption; Second, it is conducive to “forcing” judges to improve the quality of judicial judgments; Third, it is conducive to providing investment references for domestic and foreign investors and optimizing the business environment; Fourth, it is conducive to promoting the sound development of the credit mechanism and promoting the compliance and law-abiding behavior of enterprises and other market entities; Fifth, it is conducive to legal research and promoting the localization and systematization of Chinese law; Sixth, and most importantly for the ruling system, “sincerity is the way of heaven”, “without utmost sincerity, how can one establish trust?”, the disclosure of judgment documents is conducive to enhancing the credibility of the judiciary and the credibility of governance.
Of course, whether in the pre-big data era or in the current big data era, the disclosure of judgment documents does not mean complete and thorough transparency. There is no “one size fits all” in the world, and the principle of transparent disclosure is no exception. National security, trade secrets, personal privacy, and the protection of minors can all constitute legitimate exceptions to disclosure. In this regard, the “Provisions of the Supreme People’s Court on the Publication of Judgment Documents by People’s Courts on the Internet” ( Fa Shi [2016] No. 19, hereinafter referred to as the “Provisions”) has already adopted the correct three methods of response. First, it clarifies the circumstances in which judgment documents are not to be disclosed, such as those involving state secrets, crimes committed by minors, cases settled by mediation, divorce lawsuits, and the custody and guardianship of minors; second, it clarifies the persons who should be anonymized in the disclosed judgment documents, such as parties in marriage and family, inheritance disputes, victims of criminal cases, and minors; third, it clarifies the information that should be deleted in the disclosed judgment documents, such as personal privacy, trade secrets, and technical investigation measures.
Since there are such reasonable institutional arrangements, why has the Judgment Documents Network shown a downward trend in the number of newly added documents since 2021, to the point that people are generally worried about judicial openness? The reasons for this are unknown. Possible reasons are: First, there is concern that individual judgment documents will expose judicial or other governance problems and trigger public opinion; second, enterprises are worried that the disclosure of judgment documents will affect their business reputation; third, there is concern that the disclosure of judgment documents will be used for big data analysis, threatening national security.
However, these concerns are not sufficient to constitute a sufficient and legitimate reason for the Judgment Documents Network to significantly reduce the number of documents uploaded. Public opinion caused by individual judicial or other governance problems should be properly addressed, and one should not be afraid of public opinion and give up eating for fear of choking, otherwise, any public power institution can use this as an excuse to avoid disclosure. The legitimate business reputation of enterprises can be protected through the aforementioned mechanism, but the price they pay for damage to their business reputation due to illegal and non-compliant activities should be foreseeable in the legal environment. As for the national security issues brought about by big data analysis, it is still, to a considerable extent, an imagination at present, and it can also be addressed by improving preventive technology. Even in the future, if the development of artificial intelligence has reached the point of “impossible to guard against”, we cannot let the rapid wave of technology drown the values we, as dignified people, pursue.
Specifically, in the construction of the current judgment document disclosure system, it should:
First, continue to adhere to the construction of the Judgment Documents Network, restore its original function of “uploading as much as possible”, and ensure the full disclosure of judgment documents under the premise of safeguarding the legal interests that should be protected, so as to effectively meet the people’s demand for judicial openness.
Second, in principle, the function of the Case Library – selecting and editing authoritative cases to promote judicial unification – can be reflected on the Judgment Documents Network, and it is only necessary to set up a special data retrieval library on the network. If it is necessary to build the Case Library and the Judgment Documents Network separately to focus on different functions, then the function of the Judgment Documents Network should not be weakened because of the Case Library.
Third, strengthen the institutionalization of the disclosure of judgment documents and avoid the ups and downs of the practice of disclosing judgment documents. First, revise and improve the “Provisions” to enhance the effectiveness of the aforementioned three response methods; second, delete “other circumstances that the people’s court deems inappropriate to be published on the Internet” and “other information that the people’s court deems inappropriate to be disclosed” in the “Provisions” to prevent the court from having excessive discretion in the issue of whether to disclose or not, thereby undermining the principle of openness; finally, at an appropriate time, judicial openness should be legislated, or at least a special legislative resolution should be issued by the National People’s Congress or its Standing Committee to achieve judicial openness truly based on law.
Fourth, strengthen and improve the national data security system and technical measures, and build and improve the functions and levels of network early warning and interception for activities that may threaten data security. Manage risks and prevent risks through technological progress and institutional progress, and cannot lose the pursuit of basic values because of risk prevention.
Fifth, establish a correct concept of judicial openness, promote fairness through openness, let judicial power operate under the sun, let the people feel fairness and justice in every case, let fairness and justice be realized in a visible way, respond to public opinion and various legitimate interests in a legal and appropriate way.
“To adhere to governing the country according to law, we must first adhere to governing the country according to the constitution, and to adhere to governing according to law, we must first adhere to governing according to the constitution.” Only when the disclosure of judgment documents is fully guaranteed can the bottom line of governing the country according to the constitution be upheld.
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