电子诉讼制度构建的法律基础

Legal Basis of Construction of the Electronic Litigation System

电子诉讼的发展经历了内部电子法院与电子诉讼(外部电子法院)两个阶段。在法本质上,电子诉讼中信息通讯技术的工具性虽然能够满足司法实用主义的需求,但不应在根本上改变诉讼的价值与结构。在立法论上,立法与法律解释构成了电子诉讼制度构建的两个进路,法律解释方法有利于兼顾诉讼法的完整性与开放性,立法路径则要求妥善处理诉讼原则与技术应用之间的关系。在功能论视角,电子诉讼的发展应在诉讼阶段细分的基础上引入相应技术措施,适应不同的程序保障需要;对小额诉讼程序和督促程序则可试行全程化电子诉讼。在技术保障层面,电子法律交往需要法律上的安全性及真实性保障,应通过立法明确技术规制的方法与限度。

Electronic litigation has experienced two stages of development： internal e-court and exter- nal e-court. Although the instrumental function of electronic litigation has met the demand of judicial pragmatism and is conducive to solving the problems of formalization and non-popularization resulting from traditional judicial professionalization, it is not the reason to fundamentally change the value and structure of litigation. The scope of its application is also determined the degree of importance of liti- gation rights, the nature of a case, as well as the choice made by the parties to the case. From the legislative perspective, the construction of electronic litigation system can be achieved through two ap- proaches, i.e. , legal interpretation and legislation. The former is beneficial to the development of a system that attaches equal importance to both the integrity and the openness of procedure, whereas the latter requires us to properly handle the relationship between principles of litigation and technological application, take into consideration the demand for democratization of legislation, and embody the spirit of electronic inclusiveness and electronic democracy. From the functional perspective, the ap- plication of electronic litigation depends on the principles and the structure of litigation. It is difficult to apply electronic litigation procedure to matters that require strict safeguards and those for which it is difficult to initiate error-correction procedure. Therefore appropriate ICT measures should be intro- duced into different stages of litigation in light of their different characteristics, so as to meet different rights protection needs. Pilot electronic litigation can be applied to the entire process of small claims procedure and payment order procedure. At the technical support level, in the construction of elec- tronic litigation system, China should pay attention to safety and construction of friendly infrastruc- ture, and adopt corresponding safety technological standards.