在线诉讼中民事证据运用的碎片化问题及其纾解之道

The Fragmented Application of Civil Evidence Rules in Online Litigation and Its Solutions

2021年修改通过的《中华人民共和国民事诉讼法》第16条规定了在线诉讼的“等效原则”,赋予了所有在线诉讼活动合法性。然而,通过问卷调查、交流访谈与案例检索等实证研究发现,我国在线诉讼中民事证据运用存在碎片化问题,具体表现为:认知层面对在线诉讼存在误解,规范层面法律规范供给不足且不均,实践层面存在证据原件原物提交“时间差”、举证与质证“去剧场化”及证据信息安全伴随“高风险”等。碎片化问题的成因在于:传统纠纷解决观念与多元司法服务观念间的矛盾、“等效原则”抽象规范供给与在线诉讼具体实践需求间的矛盾、平台建设供给与司法实践需求间的矛盾。我们需要在理念层面树立以人民为中心的在线诉讼服务理念,在规范层面完善在线诉讼证据规则,在实践层面创建取证、传递、质证互联统一且安全的证据平台,从而有效纾解在线诉讼中民事证据运用的碎片化问题,促进在线诉讼的可持续发展。

In 2021,the revised Civil Procedure Law of the People’s Republic of China established the“principle of equivalence”for online litigation in Article 16,granting legitimacy to all online litigation activities.This has resulted in a parallel situation between online and offline litigation in China.However,after conducting a questionnaire survey,conducting interviews and carrying out evidence-based research through extensive case retrieval, results show that there are issues with thefragmented application of civil evidence rules in online litigation in China. The fragmentation refersto the discordance in the application of civil evidence rules in online litigation activities, resulting inthe legal separation of different civil evidence utilization activities due to differences between onlineand offline operations. Specifically, this manifests in a one-sided understanding of online litigation,the contradiction between insufficient and uneven legal provision and the rapid development ofinternet justice, and the issue of submitting original evidence. For instance, there may be a time gapbetween the submission of original evidence by parties and the court trial, the trial may become a“ detheatricalized”judicial mechanism in terms of evidence collection and interrogation, and there is ahigh risk of evidence information leakage. The reasons behind this fragmentation lie in the conflictbetween traditional dispute resolution concepts and the need for more diverse judicial services.Courts only provide judicial services for dispute resolution, but parties require more impartial,efficient, and convenient judicial services. Another issue is the contradiction between abstractregulations and the practical requirements of online litigation. Article 16 of the Civil Procedure Lawlacks appropriate supporting rules and operating norms. Finally, there is a conflict between platformconstruction and the needs of judicial practice. For example, there is a lack of compatibility andcoordination between online litigation platforms and other intelligence data platform, inadequatesupporting infrastructure for the operation of online litigation platforms, a lack of theoretical guidancefor the development of online litigation platforms, and information security is still in its early stagesof development. In order to alleviate the fragmented application of civil evidence rules in onlinelitigation, firstly, it is necessary to establish a service concept for online litigation and to implementthis service concept in the overall construction of“ intelligent court”, fully leveraging the guidancerole of judges in the application of civil evidence rules. Secondly, the online litigation evidence rulesmust be improved, including establishing the system of evidence disqualification, strengthening courtrules, and constructing civil asynchronous trial rules. Finally, a unified and secure evidence platformmust be established, including a collaborative evidence collection platform for Whole-web intelligencedata platform, an evidence transfer platform made by the cooperation between China Post Group andcommercial insurance companies, and an efficient and transparent cross-examination platform. Bythe above measures we can effectively solve the fragmentation problem of the application of civilevidence rules in online litigation and achieve sustainable development of online litigation.