He Haibo says China's online publication of judgments must NOT regress

The Tsinghua law professor on why China's unprecedented judicial transparency project faces challenges and how to pragmatically improve it within the current framework.

On December 13, we shared the first part of He Haibo’s live-streamed presentation calling for attention to the sharply lower number of court judgments on China Judgments Online, the Supreme People’s Court’s official platform which at its peak shared nearly 24 million judgments made across China’s courts.

The law professor at Tsinghua University was speaking at a public event by 洪范法律与经济研究所 Hongfan Legal and Economic Studies, a non-governmental research institution focusing on major legal, economic, and political issues.

Below is the last part of Professor He Haibo’s presentation.

The online publication of judgments also faces numerous challenges. This matter can be discussed from various perspectives, but the aspect I'd like to focus on is: legally, who is involved in the online publication of court judgments? Firstly, there are the judges and the courts; secondly, there are the parties involved and other relevant stakeholders. The reason why the online publication of judgments is not as welcomed by some people is that it doesn't necessarily benefit everyone, and, in fact, prove detrimental to many people's interests.

(1) The judges. Uploading court judgments poses extra work for judges, going beyond their traditional roles. I've visited some courts, and in many cases, judges are required to upload data. Some of them need to upload it to their Trial Administration Offices (审管办), which then uploads it to the Supreme People's Court. Technical issues during uploading can create challenges.

Of course, for judges, the most significant concern is that any flaws in their judgments might be exaggerated. Minor issues that weren't a big deal initially can appear more significant when scrutinized, leading to public criticism. For instance, someone online might point out numerous problems in a judgment, but on closer examination, these issues could be related to wording and punctuation. However, when highlighted online, it can create the impression of a seriously flawed judgment. As a teacher, I'm familiar with the process of making extensive corrections when reviewing students' assignments. However, when others examine these issues or post them online, the flaws can appear more significant, placing substantial pressure on the court and judges.

Another significant challenge is the lack of clarity in responsibilities. Rules regarding what can be made public and what can't are often ambiguous. Initially, judges may see no harm in making judgements public, but when public controversies arise later, it can create significant pressure for both judges and the court. Consequently, judges often have mixed feelings or even opposition to making court judgments public.

(2) The parties involved. A small number of parties wish for their cases to be made public, but the majority do not. It's somewhat like the "Not In My Backyard effect" — building a landfill is a good thing, but not next to my property. Similarly, many parties see the benefits of public access to judgments but don't want their issues made public. In cases where they lose, the vast majority of parties do not want their cases to be made public, and even those who win are not necessarily keen on publicizing them.

For example, let's say I owe 1 million yuan, and Prof. Wang sues me in court for it. The court ruled in favor of Prof. Wang, requiring me to repay 1 million yuan plus interest. Do I want this made public? Of course not! Being labeled as "The dishonest Prof. He" would be devastating to my reputation. Does Prof. Wang want it made public? Perhaps not. People might assume "Prof. Wang must be wealthy!" and jump to all sorts of conclusions. So, from the perspective of the parties involved, very few individuals genuinely want their cases to be disclosed. Furthermore, there are sensitive pieces of information that should have remained confidential but have not. If these become public or if more sensitive matters involving the parties are revealed, every effort will be made to take them down.

For example, consider the improper use of court judgments by commercial banks, which use these judgments to evaluate an individual's creditworthiness. If someone owes money to another person and it's recorded in a public judgment, it can negatively impact their credit score and ability to secure loans. On the flip side, if someone owes you money and hasn't repaid it, the banks may provide negative assessments as well. Consequently, parties involved in these cases are highly reluctant to have their cases made public and will go to great lengths to have publicly available documents removed. This is the challenge CJO currently faces.

(3) Some stakeholders. The issue of making judgments public also involves larger interests, including national security, social stability, and the government's image. National security is undoubtedly a crucial factor, and there's a growing emphasis on a "holistic approach to national security." Of course, national security is more than catching spies, but where exactly lie the boundaries of national security? Without a clear demarcation of these boundaries, the decision to publicly release court judgments could face unpredictable pressures. The initial intention of CJO was to establish rules for legal practice in China. However, the lack of detailed regulations regarding CJO itself has contributed to numerous challenges.

The same logic applies to social stability. The disclosure of certain judgments can impact the reputation of government agencies. This is quite straightforward to understand. Take, for instance, a scenario where a female auxiliary police officer has affairs with eight superiors, using this to extort them, and is eventually convicted. When such a case becomes public, it's not only about the individual officer; it reflects on the entire public security system, potentially tarnishing its image and creating significant pressure.

However, the crux of the problem is how such incidents need to be interpreted. Adopting a balanced perspective on this issue, it becomes clear that corruption is a reality in nearly every organization, department, and indeed, in every country and era. While maintaining a zero-tolerance policy against corruption is crucial, it's equally important to view such incidents through a more moderate lens. This is not to suggest that corruption should be tolerated, but rather to recognize that no single department is inherently more corrupt than others. It even more unfair to cast the blame on the courts for publishing their judgments.

The example above illustrates that the online publication of judgments involves many stakeholders, and these stakeholders may not benefit from it; in fact, they may be harmed. This presents a significant challenge to the continued online publication of judgments, which could face more and more obstacles if this issue is not addressed properly.

So, regarding possible improvements, I have a few thoughts:

(1) Improve the rules. The rules regarding the online publication of judgments still remain somewhat unclear, particularly concerning the handling of parties' identity information. This issue, coupled with the recent regression in terms of the number of published judgments, really makes me rethink CJO's original approach. Perhaps the advocates of CJO, including me, may have set overly ambitious expectations; and they may have taken overly ambitious steps in some aspects. Again, when it comes to sharing the identity information of people involved, according to current regulations, the entire information of natural persons can be made public. This includes their name, gender, date of birth, and address, with the address being public up to the district or county level. But I'm starting to wonder if we need to disclose their exact birth date. Maybe just the birth year would be sufficient. After all, revealing their month and day doesn't seem to benefit society and might be an invasion of their privacy for no good reason. So, in this regard, I believe there is room for reconsideration.

But there's one point I firmly believe in when it comes to entities involved in market transactions, particularly companies, their business details should be transparent and public. There's no reason to keep information such as the company's name, address, and legal representative confidential. This information should not be considered sensitive and should be readily available to the public.

Another crucial aspect to consider is the revision, withdrawal, and annotation of judgments. As the number of publicly available judgments increases, errors within these documents become more noticeable. These errors can range from simple textual mistakes that require correction to the unintentional omission of confidential information that should remain private, and even instances where certain cases should not have been made public at all. This issue is recurrent and underscores the need for a systematic approach to handle requests for revising, withdrawing, or commenting on judgements.

Establishing such a system may involve creating a dedicated team and implementing clear procedures. Without this, there's a risk of allowing personal connections to dictate online publication – individuals with the right connections might have a judgement removed while others remain unchanged. This would entirely undermine the original goal of making judgements public.

Additionally, under current regulations, only judgements that have taken legal effect are made public. This means that if a first instance judgement is overturned in a second instance trial, the first instance judgement is no longer accessible. While this approach helps prevent misunderstandings, it also means people lose insight into judgements that have been overturned, which hinders their understanding of the overall judicial system.

I've made a proposal that when publishing judgments online, there should be a prominent notation indicating if a judgment has been overturned. Without this feature, once a case undergoes a first instance, second instance, and retrial, and the judgment changes, the original judgment may become inaccessible. By establishing these connections and making it clear to readers about the current status of a judgment, CJO can become more comprehensive and transparent.

(2) Improve technology. Writing judgments is a significant workload, especially for judges handling hundreds of cases each year. The judgments they produce every year would collectively amount to a book. Ensuring there are no typos or errors in such lengthy documents is nearly impossible. For instance, my textbook on Administrative Litigation Law, which has millions of words, contained errors despite numerous rounds of proofreading. More errors were spotted during the reprinting process, and even then, some typos remained. This challenge is difficult to eliminate.

Similarly, handling sensitive information is a time-consuming task. Redacting sensitive information in judgments goes beyond just editing the titles; it also involves cross-referencing and checking sensitive information mentioned within the main text of the judgment. This adds to the workload significantly. In both of these areas, I believe technology can be employed to make improvements.

In other words, I hope that the Supreme People's Court can develop a robust system for proofreading judgments and handling sensitive information. technology in the era of Artificial Intelligence is well capable of addressing these issues. However, the current proofreading systems remain inadequate, and it is the responsibility of the Supreme People's Court to develop software for this purpose, which can then be uniformly used nationwide.

Lastly, there's the issue of uploading judgments. This also requires better technology, including the management of corrections and withdrawals, which would benefit from technological support.

(3) Formulate clear standards. Up to now, there isn't a very clear legal basis for the public disclosure of judgments. You might ask, "Isn't it stated in the Organic Law of the People's Courts that the people's courts shall implement judicial transparency, except as otherwise prescribed by law?" This means that unless prohibited by law, everything else should be open. However, when it comes to the specific question of whether judgments should be made public, the legal basis is not yet very clear. And it's not just the disclosure of judgments; the overall judicial openness, including the openness of the trial process, court hearings, and statistical data, is all in need of clearer regulations in the future. Therefore, a suggestion could be to formulate a unified Judicial Openness Law in the future.

I'll conclude here. The key point I want to emphasize is that the online publication of judgments should be improved and must not regress.