"Online trial" during the epidemic period
The epidemic situation in COVID-19 is characterized by long incubation period and strong infectivity. The effective means to prevent and control the epidemic in COVID-19 is to restrict the flow of people. The biggest problem of restricting the flow of people is that it will make things that need to be dealt with face to face impossible, such as court sessions. However, the society needs to operate and the work needs to be carried out, so the demand, advantages and importance of online work suddenly increase.
As far as the litigation method itself is concerned, in fact, there was no online litigation and online trial during the epidemic. In fact, before 20 18, some courts tried cases online. 2065438+In September 2008, the Supreme People's Court promulgated the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Cases by Internet Courts. The prevention and control of epidemic situation highlights the advantages of hearing cases through the Internet. Recently, the Supreme Court, some provincial courts and local courts have also promulgated the rules of "online trial".
After searching, except for the original trial rules of the Supreme Court, trial site rules, trial audio and video recording rules, and the pilot implementation measures of civil simplification reform, from the outbreak to February 19, 2020, the Supreme Court, Shandong High Court, Shanghai High Court, Shanghai No.1 Intermediate People's Court, Changzhou Intermediate People's Court, Wuxi Intermediate People's Court, Nantong Intermediate People's Court, Yingkou Intermediate People's Court, and Hami City, Xinjiang, were involved in the trial.
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The applicable premise of "online trial"-the consent of the parties
On February 20 19, the National People's Congress Standing Committee (NPCSC) authorized the Supreme Court to carry out the pilot reform of civil litigation, in which "improving the rules of electronic litigation" was one of the six pilot contents. To this end, the Supreme Court promulgated the Measures for the Implementation of the Pilot Reform of Simple Diversion in Civil Procedure (hereinafter referred to as the Measures for the Reform of Simple Diversion). The implementation measures stipulate that "the online litigation activities of litigants have the same effect as the offline litigation activities" and "the people's court decides whether to complete the relevant litigation links online according to the technical conditions, the case situation and the wishes of the parties".
The Notice on Strengthening and Regulating Online Litigation during the Prevention and Control of COVID-19 Epidemic in the Supreme People's Court on February 14, 2020 (Online Litigation Notice) stipulates that people's courts at all levels should respect the right of the parties to choose the way of handling cases and fully inform the rights, obligations and legal consequences of online litigation. If the parties agree to handle the case online, they should confirm it in the information system and leave a mark to ensure the legal effect of the relevant litigation activities. Judging from our retrieval regulations, it is necessary to obtain the prior consent of the parties.
The recently promulgated "online trial" rules also show that the consent of the parties is the applicable condition of "online trial".
This raises a question. What if one party agrees and the other party disagrees? In the reform measures of separating complexity from simplicity, the Supreme Court stipulates that if only one party chooses to hear the case online, it can be heard online by one party and offline by the other party according to the circumstances of the case. . The Shanghai Higher People's Court also adopted this method in the recently issued Notice on Actively Promoting and Strictly Regulating Online Trials. We believe that this method can avoid the difficulty that "online trial" cannot be carried out due to one party's reasons, and can promote the improvement of trial efficiency.
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Whether you agree or not, you should think about it.
When we have the conditions of "online trial", we suggest that lawyers actively embrace change and work with the court to improve the efficiency of litigation. However, it is not suitable for "online trial" if there are on-site identification, original inspection and physical inspection. It is recommended to choose offline trial.
In addition, we found that several local courts stipulated in the rules that "if the disciplinary action against the court is invalid, the connection will be forcibly disconnected through software. If the plaintiff is forced to withdraw from the connection during the trial, it will be dismissed; If the defendant is forced to withdraw, he will be absent. " There is room for discussion on the legality of some courts' provisions on compulsory withdrawal according to withdrawal, because it involves the substantive rights of the parties. We believe that although this has the consideration of strengthening the trial order in a special period, it lacks the support of the superior law and does not meet the requirements of the Supreme Court that "the relevant content must not break through the existing laws and judicial interpretations". As a suggestion, we believe that lawyers should evaluate the local "online trial" rules applicable to relevant court cases and the client's readiness to appear in court in advance, and choose the offline trial method if necessary.
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Suggestions on lawyers' participation in "online trial"
Combining the characteristics of "online trial", we put forward the following six suggestions.
Be familiar with the trial platform in advance and master the methods of evidence uploading and cross-examination. At present, the trial systems adopted by local courts are not uniform, such as "cloud online trial system" and "Shanghai court micro-trial". The operation requirements and methods of each system are different. Be familiar with the trial platform in advance and master the methods of evidence uploading and cross-examination.
Understand the operation requirements in advance and prepare the original customer identification. The Supreme People's Court's online litigation notice requires that identity authentication be completed online by means of license comparison, biometric identification and real-name mobile phone number association. Both the Shandong High Court and the Shanghai High Court stipulate that individuals must show their identity cards; If the party is an enterprise or organization, it shall entrust an agent ad litem to produce a copy of the business license, organization code certificate and other supporting materials. This is not for offline trial. Therefore, we suggest to communicate with the court in advance the operational requirements and prepare the original customer identification.
There is no audio or video recording of the trial. Although the venue of the trial is no longer in the court, according to the rules, audio and video recordings of the trial are not allowed without permission. Lawyers should abide by the court discipline, and may not record or video the trial.
If a witness testifies, communicate carefully. In the process of "online trial", if there is a witness to testify, it should be ensured that he is not allowed to attend, otherwise the witness will lose his qualification to testify if he is polluted. In addition, you should also learn the rules from the court. As stipulated by Nantong Intermediate People's Court, witnesses are not allowed to participate in online trials in the same place as the parties. In this case, it is necessary to make preparations in advance to help witnesses master the technical conditions needed for trial.
Keep the phone silent, but don't turn it off. During the "online trial", there may be network failure, equipment damage, power interruption or force majeure, which may lead to disconnection. According to the rules, the online trial should be suspended temporarily, and the parties should be contacted by telephone, and the trial will continue after the network is restored to stability. At this time, it is very necessary for the mobile phone to be unblocked, otherwise disconnection may constitute unauthorized disconnection. Some courts directly stipulate that the withdrawal of the line without authorization shall be treated as withdrawal or withdrawal of the lawsuit, and the withdrawal of the lawsuit without authorization by the defendant or the appellee shall be treated as default.
It is suggested that law firms set up trial courts. The Provisions on Several Issues of Online Trial made by Guangzhou Internet Court requires that the participants in the proceedings should choose a quiet, undisturbed, well-lit and relatively closed place to attend the trial. Some of the recent trial videos of China Trial Open Network are "online trials". By watching these videos, we found some areas that need to be improved when we attended the trial, such as echo, poor camera angle, chaotic background, untidy dress and so on. Lawyers, as legal professionals, should especially combine the characteristics of "online trial", choose a suitable place and environment, and safeguard the professional image of lawyers. During the trial, the places used by lawyers should be professional, keep quiet and tidy, and keep the trial undisturbed. Conditional firms can set up an independent, lockable room with good sound insulation effect as a court room, and consider factors such as light, camera, broadcasting and background. In the interior design, and in the trial, the "trial" sign was hung at the door.
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label
In the past few decades, Internet technology and applications have developed rapidly, and "internet plus" has become the only choice to connect the whole world and improve efficiency. The combination of Internet technology and law is also the inevitable development trend of market competition. The application of Internet technology in court proceedings, arbitration and other dispute settlement procedures in China has made great progress. Admittedly, there are still some technical difficulties in the connection between online trial procedure and traditional civil litigation procedure, such as how to identify the authenticity of evidence and express cross-examination opinions in online trial procedure, and whether the evidence information obtained through online trial is enough to identify its authenticity to the same extent as offline trial. Originally, the pilot reform of the diversion of complexity and simplification was carried out in the courts of 20 cities to explore and improve the relevant rules of electronic litigation. However, the COVID-19 epidemic may stimulate the deep integration of Internet technology and litigation procedures in China, and make the ancient and traditional place "court" change and normalize "online trial" earlier. If so, the business environment in China will be better than that in the United States.