Recently, the General Office of the Supreme People’s Court issued a document requiring the construction of a national court judgment document database. “The national court judgment document database is planned to be launched and operated in January 2024, supporting the query and retrieval of judgment documents by court cadres and police officers nationwide on the four-level court intranet.” From then on, the “Judgment Document Open Network” for the public was replaced by the “Judgment Document Database” for internal court cadres and police officers to consult. In fact, in August of this year, courts across the country began to require that judgments should not be disclosed or published online in principle, and a large number of judgments and other documents previously on the judgment document network were also removed. From then on, the effective judgments would no longer be made public to the public. The number of live court broadcasts has also begun to decrease this year. Regarding this “sharp turn” in judicial openness, the author is quite puzzled and feels some hidden worries.
1. If the Supreme People’s Court is “people-centered”, it must listen to public opinion.
Since the Supreme People’s Court stated its intention to build a judgment document database and only allow internal court cadres and police officers to consult and retrieve, public opinion has been in an uproar. Browsing self-media and WeChat circles, the public’s voice of questioning and opposition is “one-sided”. Some netizens said: “After more than ten years of hard work, it’s back to square one overnight”, and some netizens said: “This is a 20-year setback for the judgment document open system”. Many netizens worry: “This will lead to new judicial corruption”; a well-known university professor publicly stated: “Whoever closes the judgment document open network is a sinner in history.” Some lawyers also said: “Judgment documents are not just the court’s business. Lawyers and prosecutors have contributed wisdom and strength, and they should be public products. The legal profession community should share them together. Why should the court monopolize them?” Some scholars also believe that this is a major setback in judicial openness, a heavy blow to judicial informatization and smart judicial construction. Where will legal empirical research go in the future? Zhou Qiang, the former president of the Supreme People’s Court, once proposed: increase the disclosure of judgment documents and eliminate selective online publication. Unfortunately, judicial reform measures change frequently and lack continuity and sustainability. The Supreme People’s Court cannot give people psychological expectations, so how can we talk about law and the rule of law? Therefore, this move by the Supreme People’s Court will have an immeasurable impact on the destruction of the rule of law in China. The ruling philosophy of our Party is “people-centered”. If the Supreme People’s Court adheres to this ruling philosophy, it should listen to the voice of the people and not go its own way to drive “historical backwardness”. Conforming to the people’s hearts and the will of the people is the only way to win the trust of the people and improve judicial credibility. In the face of the surging public opinion online, the Supreme People’s Court should actively respond with practical actions. We expect the Supreme People’s Court to act according to the times and the situation, and truly be a role model for abiding by the law.
2. The practice of transferring judgment documents to the internal network is obviously illegal.
Article 65 of the “Administrative Litigation Law” of China stipulates: “The people’s court shall publicly announce the legally effective judgments and rulings for public access, except for content involving state secrets, commercial secrets, and personal privacy.” Article 159 of the “Civil Procedure Law” stipulates: “The public can consult legally effective judgments and rulings, except for content involving state secrets, commercial secrets, and personal privacy.” Since the law has already stipulated “open” and “public access”, the Supreme People’s Court should earnestly implement it. As the highest judicial organ of the state, it should take the lead in abiding by the law instead of using departmental documents to replace the implementation of the law. Doing so sets a “bad example” for the Chinese people to not abide by the law and should be corrected. Even the highest people’s court of a country openly violates the law, how can we cultivate the legal faith of the Chinese people? How can we ask them to abide by the law? It is believed that the above-mentioned normative documents of the General Office of the Supreme People’s Court will be subject to a legality review. If they are corrected after being reviewed by the Standing Committee of the National People’s Congress, the Supreme People’s Court will have no credibility and will be in a passive position. Therefore, it is recommended that the Supreme People’s Court be realistic and correct its mistakes. From the level of judicial interpretations and normative documents, the “Provisions of the Supreme People’s Court on the Publication of Judgment Documents by People’s Courts on the Internet” is a judicial interpretation, while the document issued by the General Office of the Supreme People’s Court is only a normative document, and its level of effectiveness is lower than that of judicial interpretations. It violates basic legal principles to abolish judicial interpretations with normative documents. Therefore, the Supreme People’s Court’s rejection of the effectiveness of laws and judicial interpretations with red-headed documents is a clear violation of the law and should be corrected.
3. Transferring judgment documents to the internal network will lead to a series of problems.
(1) The important channels for public participation and supervision of the judiciary are blocked.
Once upon a time, the disclosure of court judgment documents was regarded as an important step in China’s judicial openness. The Supreme People’s Court also specifically issued the “Provisions of the Supreme People’s Court on the Publication of Judgment Documents by People’s Courts on the Internet”, which made relevant provisions on the scope, time limit, and procedures of the disclosed cases. Judgment documents are the “final products” produced by the court and are an important channel for the public to participate in and supervise the judiciary. Through public participation and supervision, courts across the country can achieve “the same case, the same judgment”. The initial promotion of online judgment documents was to achieve “judicial democracy” and promote fairness and establish credibility through openness. In response to the current judicial injustice and even judicial corruption, it is particularly necessary to protect the public’s right to know, participate, and supervise. The public does not have many channels to understand the judiciary. Blocking this important channel is even more unfavorable to the supervision of the judiciary from society. The right of citizens to criticize stipulated in the “Constitution” of China is based on the right to know. If the public cannot participate in and understand the judicial judgment, how can we talk about supervising the judiciary? In this way, the arbitrariness and tyranny of the judiciary may be inevitable. Will the quality of the judgment decline? Why and how do people feel judicial fairness and justice?
(2) A major setback in judicial openness.
The disclosure of judgment documents is an important part of judicial openness. Disclosing court judgment documents to the public is a major trend in judicial reform in the world. Not only in Taiwan and Hong Kong, but also in the United States, Germany, and Japan, courts are required to disclose effective judgments. China’s judicial reform cannot go against the world trend. In the context of judicial openness and democratization becoming the mainstream of judicial development, the “sharp turn” in judicial openness is quite puzzling. Whether this is a “signal” or a “weathervane” for China’s judicial development is inevitable. Of course, the disclosure of judgment documents will increase the court’s work costs and the workload of judges, but its “benefits” are also considerable – judicial democratization, public supervision rights, and judicial fairness can be relatively realized. Domestically, while the disclosure of procuratorial affairs, police affairs, prison affairs, and government affairs are being vigorously promoted, the retreat of trial openness is incredible. The Supreme People’s Court should respond to social concerns in a timely manner and explain the reasons for doing so to eliminate the doubts of the public.
(3) The power of lawyers to conduct case agency and defense is weakened.
Previously, many lawyers would use the method of “case retrieval” to conduct case agency or defense, and support their agency or defense opinions by providing similar case judgment documents from other courts in China to the court. Nowadays, judgment documents have become the court’s “own business”, and lawyers naturally cannot find similar cases through online retrieval to request the judge to support their agency or defense opinions. Under the background of the new round of judicial reform strengthening the protection of the right to defense, the power of lawyers’ defense is weakened. This practice violates the spirit of judicial reform and is not conducive to the realization of lawyers’ right to defense. When lawyers lack this kind of defense method, “listening to both sides” and “the same case, the same judgment” cannot be realized. The restriction of the right to defense on the right to trial will also be weakened, and defense may become a formality. For lawyers, after receiving a case, they usually study the judgment documents to study the defense ideas and judgment ideas of related cases. After the judgment documents are not disclosed, this path of lawyers may be blocked.
(4) The quality of trials may decline.
In the past, the online publication of judgment documents had a “compelling” function, which could urge judges to pay attention to the reasoning of judgment documents, strengthen the writing of judgment documents, and also reduce and prevent obvious judicial injustice, making it difficult for judges to “justify themselves” when handling “human cases” and “relationship cases”. Let the judges feel the pressure of the judgment documents being examined by society online. Only with pressure can there be motivation, and only then can judges have the opportunity to learn and improve their own professional qualities. The current “internal circulation” has reduced the pressure on judges, but whether it will lead to a decline in the reasoning and quality of judgment documents, the public also has doubts about this. Originally, the phenomenon of “one size fits all” in the format of judgment documents in China was relatively prominent. If judges do not pay attention to the production of judgment documents after the judgment documents are transferred to the “internal network”, it will undoubtedly lead to a decline in the quality of the documents and even the quality of the trials. Judgment documents are a “mirror” of the judge’s rationality and conscience. Through this, we can observe the judge’s professional ethics and professional quality. Now that society can no longer find a “mirror” to observe, how can we ensure that the quality of trials can be improved?
(5) Legal professionals have lost this important “research garden”.
As a legal educator and researcher, my biggest experience after the judgment documents were published online is that teachers and students are paying more and more attention to judicial practice issues. They conduct research by retrieving cases online, writing graduation theses or publishing academic papers, and they have less of the past of running around various courts to collect cases through relationships. However, after the judgment documents are transferred to the internal network, not only is it almost impossible to conduct empirical research through case retrieval, but the reduction of such research results will also lead to a lack of theoretical support for the trial work, which is not conducive to the development and realization of high-quality trials and the modernization of trials. I believe that the proportion of law students conducting such research in the future will greatly decrease because they have lost the research conditions, and the prosperity and development of academics will also be affected. Professor Wang Zejian, a scholar from Taiwan, once said that “cases are the foundation of learning law”, and reading cases is the daily task of legal professionals. Every classic case is a real-world teaching of top masters. In these cases, you can see: how top judges interpret and apply the law to solve complex real-world problems; how first-class lawyers design their own litigation strategies, balance world affairs while maintaining professionalism, and exert the wisdom of insight and human understanding.
The online publication of judgment documents is a kind of “visible” procedural justice. There is a legal proverb in the West that justice should not only be realized, but also be realized in a way that people can “see”. Now, people “cannot see” it, how can we ensure the realization of justice?
(Author: Han Xu, Ph.D., Postdoctoral Fellow, Professor and Doctoral Supervisor of the School of Law, Sichuan University, Standing Director and Academic Committee Member of the China Criminal Procedure Law Research Association)
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