Asian Journal of Law and Society,7 (2020), pp.

515–530
doi:10.1017/als.2020.37
© The Author(s), 2021. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence
(http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided
the original work is properly cited.

The Change of Judicial Power in China in the Era

of Artificial Intelligence

Weidong JI*
China Institute for Socio-Legal Studies, KoGuan School of Law, Shanghai Jiao Tong University

Abstract
The singularity of artificial intelligence (AI), which transcends human intelligence to play the
role of God, is imminent. In this context, the Chinese judicial system has gained some latecomer
advantage, with the help of information technology, the Internet, big data, cloud computing, and
AI to improve the efficiency and transparency of case handling. The trial process has undergone
extensive and profound qualitative mutations. This represents a challenge to the institutional
arrangements of the modern rule of law. At this stage, we should adopt a cautious and prudent
attitude towards the design and application of legal-expert systems as well as machine learning.
Especially from the aspect of computer sentencing, it is even more necessary to avoid a rush for
quick results, and there is no need to completely exclude the judge’s discretion and free evalu-
ation of the evidence through inner conviction. The finality of the judicial power is destined to
choose a correct final solution through a debate on the survival of the fittest mechanism. In the
face of such a modern rule-of-law system, big data, cloud computing, information technology,
and AI are just auxiliary means to achieve legal justice. It is impossible to put the cart before the
horses. This is a basic principle that we should always bear in mind.

Keywords: artificial intelligence, judicial power, computerized judicial operation, legal

reasoning, free evaluation of the evidence

1. SMART-DESIGN MOVEMENT AND NEW TRENDS OF CHINA’S

JUDICIAL REFORM
On 17 September 2000, the Brazilian artist Eduardo Kac created the green fluorescent rabbit
Alba with the help of French genetic engineering. This peculiar genetically modified organ-
ism has been marked as a breakthrough in the natural selection and evolutionary system that
lasted for 4 billion years. Today, human beings can also rationally design their lives and the
social structure is bound to change dramatically.1 In short, with the “smart-design” move-
ment that includes bioengineering, robotics engineering, and non-organic-life engineering,
humans have begun to play the role of God.
A few years later, another series of exciting pieces of news came one after another. On 11
December 2015, three researchers announced that their jointly developed artificial

* University Professor at Shanghai Jiao Tong University and President of the China Institute of Socio-Legal
Studies. Correspondence to Weidong Ji,. E-mail address: [email protected]
1. E.g. Robinson, Fernald, & Clayton (2008), pp. 896–900; Donaldson & Young (2008), pp. 900–4; see Harari &
Lin (2014), chapter 20.

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 516 A S I A N J O U R N A L O F L A W A N D S O C I E T Y

intelligence (AI) system has the flexibility of human cognition. The probabilistic program
can distinguish between the essential and non-essential features of characters and can extract
new concepts from a small number of cases.2 On 15 March 2016, the AI program
“AlphaGo” defeated the world champion Lee Sedol with a 4:1 record, causing a global sen-
sation. On 19 October 2017, the major media reported that the “AlphaGo Zero” program had
been developed by the company DeepMind, a subsidiary under the Google umbrella master-
ing self-learning and creativity. These facts have occurred one after another, which means
that, as singularity is close, AI will surpass human intelligence to play the role of God.
From Alba to AlphaGo to AlphaGo Zero, only 17 years have passed. The digitalization
and Internet-based social restructuring that started in the 1990s have achieved great
improvements in only 30 years. During this period, the Chinese judicial system has gained
some sort of latecomer advantage, using information technology, the Internet, big data,
cloud computing, and AI to improve the efficiency and transparency of case handling, result-
ing in extensive and profound qualitative changes and mutations in the trial process. As a
result, it must be acknowledged that the subject, standards, and procedures of ruling have
presented an unprecedented scene: courtrooms seem like factories; the significance of the
judge as a skilled judge operating on the line of operations is being strengthened by the
weakening of the synergy and unity of the different roles of the public-prosecutor division.
All these trends pose a serious challenge to the institutional arrangement of the modern rule
of law and it is worthy of our careful research, analysis, and consideration. This article
attempts to present some cold thinking about the social craze which exclaims that “robot
judges are coming” and traces the initial intention and essence of judicial-system reform.

2. THE DEVELOPMENT OF AI AND A LEGAL DATABASE

Recalling the history of research on AI, big data, and law (especially the trial system), the
West German Ministry of Justice established a design group that specialized in the role of
computers in legal practice and operational mechanisms in the late 1960s. In 1973, a data-
base and social-law search device called JURIS was constructed.3 In the US, Bruce
Buchanan and Thomas Headrick published an article about investigations into several issues
in AI and legal reasoning4 in November 1970, which opened up a study on how to conduct
computer information on legal reasoning in case management.5 Afterward, Walter Pope and
Bernhard Schlink created JUDITH, a lawyer reasoning system that improves the quality and
efficiency of legal services.6 The University of Rutgers developed the world’s first computer
legal-expert system in 1977—TAXMAN, which deals with corporate-taxation issues based
on the LISP programming language and facilitates the precise and rapid processing of large
amounts of transactional work.7 In the same year, the Institute of Law of the former Soviet

2. Lake, Salakhutdinov, & Tenenbaum (2015), pp. 1332–8.

3. Gong & Li (1983), p. 16; see also e.g. Simitis (1967).
4. Buchanan & Headrick (1970), pp. 40–62.
5. Maggs & deBessonet (1972), pp. 158–69; D’Amato (1977), pp. 1277–301; deBessonnet (1991).
6. Popp & Schlink (1975), pp. 303–14.
7. The representative discussion of the system designer himself includes McCarty (1977), pp. 837–93; McCarty
(1980), pp. 23–43; McCarty (1983), pp. 265–94; see Matsumura (1986), pp. 24–35.

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 THE CHANGE OF JUDICIAL POWER IN CHINA 517

Academy of Sciences also launched a research project on automation management and

related legal issues.8 From the perspective of the socialist economic system, enhancing plan-
ning rationality through AI and monitoring the implementation of norms with precision
seem to be the proper methods.9 The researchers at the RAND Corporation’s Civil
Justice Center, D. A. Waterman and M. Peterson, developed the Legal Decision-making
System (LDS).10 The Imperial College of the University of London, UK, realized
human–computer dialogue in the practice of nationality law with the help of the reasoning
function of the programming language PROLOG. The reasoning function realizes a human–
computer dialogue about nationality law.11 At about the same time, Japan’s Institute of
Electronics Technology (now the Industrial Technology Research Institute) has also devel-
oped patents including substantive and procedural law and their interrelationships pro-
grammed in the KRP programming language.12 In 2001, the US Supreme Court
officially launched the Case Management and Electronic Archives System (CM/EAS).13
According to the statistics, by the end of 2014, the system included more than 1 billion
searchable litigation documents covering 13 federal appeal courts, 94 federal district courts,
90 federal bankruptcy courts, and several federal specialized courts, and has formed a vast
judicial database.14
In China, the use of computer systems to establish a legal database, representative of the
conception of auxiliary trial business, may be traced in the work of Gong Xiangrui and Li
Keqiang published in the Law Journal 1983, “The Computerization of Legal Work.”
Perhaps the earliest relevant practice is the one I have seen at the Law Department of the
Peking University Law School; some postgraduate students started a foreign-related legal-
inquiry system in 1985 under extremely simple conditions. The evolutionary version of this
query system is the well-known Chinese legal database of sentences and regulation called
“Peking University Talisman” (www.pkulaw.cn). I remember that its early slogan was
“e law, 0 distance.”15 In 1986, the subject of the “Sentence Comprehensive Balance and
Computer-Aided Sentencing Expert System” hosted by Shanghai legal scholars Zhu
Huarong and Xiao Kaiquan was approved by the National Social Science “Seventh
Five-Year” research project. In 1993, Professor Zhao Tingguang from Wuhan University
Law School led the development of a practical criminal-law-expert system consisting of three
parts: an auxiliary qualitative system of the consulting and retrieval system, an auxiliary sen-
tencing system, and a function of retrieving legal standard information and reasoning and
judgment on cases. The system has been adopted by more than 100 courts, procurators,
and law firms.16 As we all know, after the 1990s, the development of digital information

8. Gong & Li, supra note 3, p. 17.

9. But the famous legal economist Professor Xu Chenggang clearly pointed out at the 2nd Wild Hillside China
Economic Forum that “using big data and artificial intelligence to build a planned economy will not work.” See Xu (2017).
10. Waterman & Peterson (1981); Waterman & Peterson (1984), pp. 65–76; see also Waterman, Paul, & Peterson
(1986), pp. 212–26.
11. See Matsuo (1986), pp. 51–8; Sergot et al. (1986), pp. 370–86.
12. See Niida (1987).
13. E.g. Zernik (2010), pp. 69–83; see Gao (2010), pp. 50–6; Yang (2011).
14. Roberts (2014).
15. The source of its thoughts can be seen in Zhang (1986). In recent years, Zhang Lixing established a “legal
laboratory” for information retrieval and AI, and launched several kinds of legal-robot products.
16. See Hou (2007).

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 518 A S I A N J O U R N A L O F L A W A N D S O C I E T Y

technology created the global “Cyberspace,” the large-scale “Netizen,” and “the e-People.”
“International crimes on the Information Highway are increasingly active, and hacker-like
anarchism continues to spread.”17 In 1999, the Ministry of Public Security of China set up
a computer-management and supervision department and deployed a large number of
“cyberpolice”18 patrolling electronic space, using electronic-information-detection systems
to detect criminal acts and collect evidence. “E-Detective” is also quite effective.19 The con-
cepts of “network society” and “network law” also entered the field of mass media.

3. TECHNOLOGICAL INNOVATION OF COMPUTERIZED

JUDICIAL OPERATIONS
The Internet and digital information technology also provide important leverage and oppor-
tunities for the innovation of China’s judicial methods and judicial-system reform. In gen-
eral, the infrastructure construction of the traditional style of courts is time-consuming and
laborious. It is necessary to install and manage a large number of laws and regulations, juris-
prudence, and litigation files, and to expand office space and staffing accordingly, but com-
puter systems and multimedia can help. The Chinese judicial institutions with relatively
backward conditions have achieved a leap-forward development. The virtualizing adminis-
tration of justice can also solve the specific problems of an insufficient number of qualified
judges, insufficient judicial funds, and the spreading of judicial corruption with a low uni-
formity in the application of law. In my opinion, it is with these considerations that the
“Five-Year Reform Outline of the People’s Court” promulgated by the Supreme
People’s Court on 20 October 1999 took the use of information technology and the estab-
lishment of the online trial system as important parts of judicial reform.20
The first five-year plan of reform aimed, through using information technology, to
strengthen the modernization of the court’s office and further improve the judicial efficiency
and management level of courts, emphasizing that “the trial court should be equipped with
security inspection, court text entry, recording and video-recording, projection, closed-
circuit television monitoring system and other corresponding technical equipment.” This
requires all levels of courts to “basically realize the computer and other modern technical
means in the trial records, litigation documents, court personnel management, file manage-
ment, statistical-data processing before the end of 2001” as well as the implementation of
other aspects such as speeding up the computer information network and communication,
construction, and unified network application software. It took three years to complete the
computer network between the Supreme People’s Court and the high- and middle-level peo-
ple’s courts, and strive towards establishing a national court computer network system. Case
management, information, and statistical-data collection and transmission are included in
the network system to improve the scientific and technological content of the various man-
agement work of the people’s courts. It also stipulates that:

17. Dearing (1999), pp. 4–5; Lessig (1999).

18. Liu & Platt (2000).
19. Ju (2000), p. 94.
20. See Ji (2001), pp. 222–35.

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 THE CHANGE OF JUDICIAL POWER IN CHINA 519

by the end of 2000, the Supreme People’s Court will complete the reform of the judicial stat-
istical indicator system for various cases. As well, explore the establishment of modern judicial
statistics work and management that meets the needs of the People’s Court for Trial
Management and has rapid response and macro analysis capabilities systems.21

In 2002, the Supreme People’s Court enacted the “Regulations on the Construction of the
Computer Information Network System of the People’s Court” and the “Plan for the
Construction of the Computer Information Network System of the People’s Court,” con-
vened at the National Conference on Information Construction of Courts, and launched
the “National Judicial Trial Information System Project.” These reforms laid the foundation
for the large-scale use of big data, cloud computing, the Internet, information technology,
and AI in the trial process.
It can be seen here that the Chinese Court Reform Program expects multimedia and digital
information technology to play the following three main functions: (1) as a “tool for trial
activities,” to help judges and lawyers to obtain litigation materials and record the results
of the inspection; (2) as a “device for court management,” to save and transfer trial data,
master the trial in a timely way, and produce court documents through audio and video
recordings, etc.; and (3) as the window of “real-time observation” of the process of case
handling, and judicial hearing being visualized and supervised by public opinion on live
broadcast. To ensure that these functions are fully utilized, relevant courts at all levels have
formulated relevant rules and regulations. For example, the Computer Network
Management Rules of the Haidian District People’s Court of Beijing (implemented in
April 1998) stipulate that all courts must conduct various records and case counts simulta-
neously with the trial. The trial data input shall be uniformly managed by the Computer Unit
of the technical room and quarterly surveys and spot checks of information quality shall be
carried out at any time. For this reason, the judges’ clerks and administrators are also tested
for their information-processing skills and penalties are set for negligence.22 In addition, the
research and development of the computer legal-expert system and the judicial
administrative-support system were also officially put on the agenda.23 By 2003, the
“China Trial Law Application Support System” had been promoted throughout the country.
In 2004, the Supreme People’s Court set up the first electronic and intelligent court. It is not
difficult to imagine that, from the end of the 1990s, what the French social thinker Michel
Foucault had thoroughly analyzed, the rational and precise power relations, the micro level
of regulation, organization, efficiency, mechanized landscapes, and how to use computer
systems and digital information technology as levers in China’s courts at various levels,
gradually unfolded and finally became a grand view.

4. EXPERIMENTS AND ARGUMENTS AROUND COMPUTER

SENTENCING
The most radical manifestation of the judicial AI was in 2006: the Shandong Province
started to use a criminal-trial-expert system in the Zichuan District Court and in local courts

21. Research Office of the Supreme People’s Court (2000), p. 69.

22. Beijing Haidian District People’s Court (1998), pp. 203–6.
23. Lu & Shen (2000).

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 520 A S I A N J O U R N A L O F L A W A N D S O C I E T Y

at all levels to implement computer sentencing. It became sensational news internationally.

The main reaction of overseas legal professionals and the media at the time was that they
were amazed at the extremely bold innovations of Chinese courts in trialling AI and had
considerable fear of automated judgments using mouse clicks. Because criminal proceed-
ings are related to human life, freedom, national goals, and social justice, compared with
civil and commercial law, here it is more necessary to retain personal evidence and the scope
of influence. More importantly, it is necessary to strengthen the comprehensive understand-
ing and detailed insight into the specific factual relations and contexts, and these elements
are more difficult in cases carried out by mechanized technology.24
From the view point of Chinese legal traditional culture, we can find that the basic char-
acteristic of the legal system lies in the absolute legal sanction of the serious case and the
mechanized and detailed provisions of the judicial discretion. I pointed this out in 1993
when I published an extended paper on “The Meaning of Legal Proceedings” and I have
stated the following critical observations:
All generations of criminal laws were set in the same way, almost ruling out the scope of sen-
tencing. Unfortunately, electronic computers had not been invented at that time. Otherwise, the
expert system software of automatic sentencing might have been designed by our ancestors : : : .
To prevent and limit the arbitrariness, China has adopted more stringent measures than the West.
Its motives may be understandable, but its effects are terrible because our country represses
choice as well as its willfulness, which is the value of the [legal] process.25
I did not expect that, some ten years later, or even earlier, someone would use the tools of the
information-technology era to fill the regrets of the past. The software for automatic sen-
tencing and the time between the elements and the effects are some choices that have been
added to the situation. Therefore, it is not surprising that, in China, computer punishment is
easy to be accepted and quickly popularized because it is based on the precondition and
catalyst of the inherent way of thinking.
There is also an evident direct cause, which is that the quality of handling cases in judicial
activities is quite variable: the abuse of discretion, judicial corruption, miscarriage, and even
the “yin and yang sentence” of two conclusions26 that have greatly shaken public confidence
in the judiciary. It also encourages the objectivity, neutrality, and certainty of computer sen-
tencing. So, the judges and the parties are trying to use the light of science and technology to
illuminate the black box that allows discretion and informal operation, and use computers to
guarantee the fairness, efficiency, and precision of the trial. From the introduction of the
“Rules for the Implementation of Standardized Sentencing for Hundreds of Common
Crimes” compiled by the Zichuan District Court, it is possible to find the reciprocal effect
between Montesquieu’s standard image of a judge like a vending machine and the traditional
way of thinking that sentences are automatically given in accordance with the provisions of

24. For details, see Ji (2006); Ji (2007). The reason for the incident is that the “Beijing News” published a message
on 23 May 2004 that caused concern and controversy in China; see Beijing News (2004). The general situation at that
time can be found in the report in Legal Daily (2004). Computer sentencing is once again eye-catching because of the
report of Legal Daily (2006). The Suichuan court explores the standardization of criminal-trial sentencing. There are
many related introductions and discussions in China, such as Democracy and Legal Times (2006); Southern Metropolis
Daily (2006). For the reaction of international public opinion, see Haines (2006); Tech Republic (2006); IT Media
News (Japan) (2006); Amazing News (Japan) (2006).
25. Ji (1993), pp. 97–8.
26. For a typical example of the coexistence of true and false judgments, see Xinhua News (2006).

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 THE CHANGE OF JUDICIAL POWER IN CHINA 521

the articles. Here, it may also be concluded that a judicial-mirror principle of judgment
strictly corresponds to the same case of law. If you think at the level one more deeper layer,
there has also been a change in the understanding of the nature of a trial by trying to replace
the common language with a professional common language (to compare facts and conduct
rigorous arguments according to legal requirements), as much as possible to exclude the
effects of emotional factors and ambiguous connotations on inference. The promotion of
computer sentencing in Shandong courts has produced the intention and objective effect
of making legal jargon more standardized with the help of computer language. For example,
Zichuan District Court President Wang Jiandong said that the rural, mountainous region of a
judge’s professional quality is generally low, the discretion is often abused, and, under such
conditions, the use of sentencing software to handle cases (“In essence, people are con-
strained by institutions”27) will keep the trial more in line with the unified professional stan-
dards. In such a sense, the effort is certainly worthy of a full evaluation.
Nevertheless, we should adopt a cautious attitude towards the design and application of
legal-expert-system software, especially from the aspect of computer sentencing, and it is
also not necessary to completely exclude the judge’s mind and discretion. To ask why, the
answer is: first, any legal-expert-system software makes a pure legal-positivism presuppo-
sition. The computer deals with the syllogism reasoning in the content of the legal text and
the conditional reasoning of “requirement–effect.” It can also deal with the similarity
between the case characteristics and the basic case features retrieved by the database and
make propensity reasoning and judgment.28 However, it is impossible to properly represent
the meta-rules that determine the order of the pros and cons of effective specification.
Computer sentencing can largely exclude subjective arbitrariness in exercising discretion,
but it also excludes speculations including natural law, the protection of rights, natural
and human nature, and some critical factors such as teaching less and focusing more on
prevention; it also tends to exclude policy-adjustment mechanisms such as interest consid-
erations. Second, the standardization embodied in computer sentencing is bound to ignore
local knowledge, context, specific situations, and the “webs of significance” as key elements
for legal judgment. To some extent, it may be argued that tacit knowledge indicates the
boundaries or limitations of computer legal-expert-system and AI trials.
Moreover, Chinese statutes have always been marked by simple slogans and there is no
shortage of space for interpretation; the connotation and extension of each concept have
not yet been completely unified. For example, only the obligation clause has different expres-
sions such as “should” and “must.” The principle of fair liability with Chinese characteristics
and the often-used terms such as “reasonable” and “predictable” play an extremely important
role in legal reasoning, but the relevant matters are not given in the legal provisions and do not
have a clear definition. Administrative and local norms are extremely complex and there are
often contradictions between different levels and departmental regulations, making integration
work extremely difficult. All these realities are suitable for computer processing. Conversely,
if the dialogue and communication between the inside and outside of the court are formatted
and fixed through the machine in such a state, it is likely to hinder the development and
improvement of legal hermeneutics, reasoning techniques, professional education, and the

27. Southern Metropolis Daily, supra note 24.

28. Prentzas & Hatzilygeroudis (2007), pp. 97–122; Kumar, Singh, & Sanyal (2009), pp. 65–71.

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ethical attitude of the judge, making the justice flow a simple intellectual game of retrieval and
speculation. If such primary system software is only used to support trials and to reduce the
search burden and avoid omissions to a limited extent, it is not only unobjectionable, but also
strongly supported. But, once the judges are required to form a judgment based on this, and
even automatically generate judgments, it will inevitably lead to endless trouble.
It is also necessary to point out that the current database of legal knowledge in China is
incomplete.29 The core of computer sentencing is the legal-reasoning system and the accumu-
lation of research results on legal reasoning is extremely weak in China. Under such circum-
stances, if the simple method of formalizing the relevant provisions and adding several
explanatory rules is adopted, then, when the software is executed, it would be easy to appear
as if the knowledge itself does not circulate, but the program falls into a useless loop. It is also
difficult to properly handle negative performance. If the vocabulary reserves are not enough,
the combination of the legal-knowledge database and the inference engine can easily lead to
meaningless searches. If there are multiple legal-knowledge databases, how to make them
compatible with each other and to eliminate the integration of contradictions and conflicts
and effective consistent control is also a difficult and important topic, which requires signifi-
cant time and effort to achieve progress. Moreover, the law is constantly being revised, and
updating the knowledge database and adjustment of the interpretation rules also need to be
carried out. In the network structure, if the redefinition of a certain item is neglected, it is
possible to multiply the error and cause the automated processing to be abnormal. This will
also lead to high costs for the construction and maintenance of legal-expert systems.
It would be a mistake to try to use “the US Federal Sentencing Guide” as a defence for
mechanized trials. The nature of “the Federal Sentencing Guide” is closer to a technical
manual on how to exercise discretion. On the one hand, the informal “quote” of past sanc-
tions within the court and the ambiguous judgment were previously clearly defined as far as
possible. It is stipulated in the guide, on the other hand, that many standards of policy adjust-
ment have been established for the precision and flexibility of the judiciary (e.g. the principle
of giving priority to the relief of victims and the various elements of the aggravation or
mitigation of sanctions against corporate crimes).30 It is particularly worthy of attention that
this judicial technical-operation rule has obvious moral orientation, human rights philoso-
phy, and policy thinking, and is subject to constitutional review.31 In China, a more similar
phenomenon is the judicial interpretation of the Supreme Court’s specific criteria for deter-
mining the magnitude of sentencing and calculating the amount of compensation, as well as
the Guidelines of Sentences recently tried by some courts. There is not much substantive
connection with the computer automated-processing-software system. Since the purpose
of computer sentencing is to pursue precise trials, then the expert system software itself must
be able to withstand sophisticated trials and judges must have the quality to avoid human

29. This issue is also plagued by legally developed countries. For the weak foundations of similar expert systems,
the challenges of software development, and the various efforts and specific solutions to overcome barriers, see
Thomasset (1989); see also Natsui (1993), Part 3, chapter 3; Yoshino (2000), especially chapters V, VI.
30. For the ins and outs of the US Federal Sentencing Guidelines, the basics, and recent controversies and amend-
ments, see US Sentencing Commission website (https://www.ussc.gov/guidelines (accessed 20 September 2006)).
31. Documents can be referred to, e.g. Gebler, and also the Ethics and Policy Integration Centre (2003), as well as
Democracy Now (2005).

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 THE CHANGE OF JUDICIAL POWER IN CHINA 523

mistakes such as misleading the mouse or the fat-finger problem. This is a conclusion that
can be inferred without a computer.

5. LITIGATION-INFORMATION SYSTEMS AND WISDOM COURTS

With computer sentencing at different levels of the trial, aided information systems are also
developing. From 2007 to 2017, Chinese courts at all levels were rapidly entering the informa-
tion age. In 2007, the Supreme People’s Court published the “Decision on Comprehensively
Strengthening the Informationization Work of the People’s Courts,” followed by the formulation
and issuance of the “Code for the Construction of the Information Court of the People’s Court
Trial Court (Trial).” On the basis of summing up the practical experience, the Supreme People’s
Court issued the “Basic Requirements for the Informationization of the Trial Court of the
People’s Court” in 2011 and promulgated the “Several Opinions on Promoting the
Construction of the Three Platforms for Judicial Openness” in 2013 and the fourth judicial
administration in the country. For the first time, the concept of “big data, big pattern, big service”
was put forward. On 1 August 2014, the Supreme People’s Court opened the China Trial
Process Information Open Network and a litigation-service network at the end of the year.
At the end of December 2015, the lawyers service network platform was opened. Since
2015, the informationization process has accelerated again. The Five-Year Development
Plan for People’s Courts’ Informatization Construction (2016–20) and the Five-Year
Development Plan for the Informationization of the Supreme People’s Court (2016–20) were
simultaneously released. Soon, the Judicial Big Data Co., Ltd. was formally established and
the “Faxin—China Legal Application Digital Network Service Platform” was officially
launched. In July of the same year, the Supreme People’s Court first proposed the concept
of a “smart court;” one year later, the construction of a “smart court” was included in the outline
of the national informationization-development strategy. At the Third World Internet
Conference, the Supreme People’s Court took the lead in organizing the “Wisdom Court
and Network Rule of Law Forum” and issued the “Wuzhen Consensus” on judicial informatio-
nization, intelligence, and networking.
The “wisdom court” is a concept with multiple meanings and it should not be simplified as an
“AI trial.” For example, the Shanghai No. 2 Intermediate People’s Court launched the “C2J
Judge Intelligent Aid Case Handling System” in 2012. It has 35 subsystems including trial-work
support, judgment-document analysis, and mobile-terminal case-handling APP (application soft-
ware), involving case submission, remote trial, cross-border forensics, and many other functions
including collaborative execution. The Shanghai Higher People’s Court established the
“Shanghai High People’s Court Big Data Information System” consisting of portal websites
(intranet, extranet), a central database, six information-application systems, 133 application soft-
ware items, and a computer- and multimedia-system infrastructure. It implemented the concept
of network three-level linkage, application comprehensive coverage, data generation, high infor-
mation aggregation, and full resource sharing, and established a 12,368-litigation phone-service
platform to provide various pieces of information to parties, lawyers, and the public.32 In the
same year, the Zhejiang Higher People’s Court launched the information-management system

32. SHPC (2017), pp. 57–8.

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of the People’s Court of the province. In 2014, the Jiangsu Higher People’s Court established the
litigation-service network “Jiangsu Legal Cloud,” which not only provided information services
in litigation, trial, and judicial administration, but also visualized the judgment-execution proc-
ess. At the end of 2016, the Beijing High Court launched the “Intelligence Judge” system,
known as the “robot judge.”33 Affected by developments such as “AlphaGo” and “AlphaGo
Zero,” the speech bubble around “robot judges” and “robot lawyers” is also expanding.
Some local courts have begun to vigorously promote such decisions as the automatic generation
of sentences by AI. There are also innovative measures such as correcting the errors of judges
based on big data.
At the beginning of June 2017, the Central Political and Legal Committee organized more
than a dozen experts and scholars to visit Shanghai, Nanjing, and Guiyang to investigate the
results of the pilot reform of the judicial system. The focus of the experience of local and
various agencies has inadvertently shifted from judicial-system innovation to judicial-
technological innovation. Wisdom courts, data courts, litigation services with integrated
information systems, electronic cross-examination, cloud cabinet interconnection of case
files, intelligent voice court proceedings, discretion data cages, robot lawyers, buzzwords,
new concepts, and avant-garde phenomena have come out one after the other. These new
improvements have left people both excited and worried about the risks and hidden dangers.
In any case, courts at all levels are becoming like a judgment workshop and judges are work-
ing mechanically as if in an assembly line. On many occasions, the trial has become the
result of a joint decision between the judge and the computer engineer. The automatic gen-
eration mechanism of the judgment can easily lead to the data algorithm governing the judi-
cial realm. In short, the trial space is undergoing radical reforms, which are vigorous and will
inevitably affect the design of various legal mechanisms and the field of legal education in
the future. We cannot but carefully observe, analyze, and comprehensively evaluate the two
aspects. The various ripple effects of the “Internet
” and “Artificial Intelligence
” in the
trial space take precautionary measures from the system and from the mind.

6. COLD THOUGHTS ON JUDICIAL AI FEVER

In recent years, with the transformation of social structure and the enhancement of citizens’
rights awareness, the scale of cases accepted by Chinese courts has grown at a double-digit rate
yearly as a lawsuit explosion. As a result, the cases handled by judges have risen sharply and
remain high. The judicial authorities have actively adopted new information technologies like
the Internet, big data, cloud computing, and AI to improve judicial efficiency. From Shanghai to
Guizhou, the local courts have alleviated the backlog of cases through the simplification and
diversion of cases, the verification of the maximum number of cases handled by judges per year,
the strengthening of assessment accountability, and the adjustment of the proportion of judges
and trial-support personnel. The slogan is “efficiency.”34 It is indeed effective to reduce the load
of mechanical labour and improve the speed and quality of materials and data processing
through computer information-retrieval systems and other auxiliary means. In this sense, the

33. Liu (2016).

34. For details, see Cui (2017), pp. 1–9.

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 THE CHANGE OF JUDICIAL POWER IN CHINA 525

construction of the “wisdom court” has an important value and it is promising. However, if we
go further and let AI exceed the scope of auxiliary means and apply it comprehensively to trial
cases, and even largely replace judges’ judgments, it is very likely that the judicial power will go
astray because, in cases where the facts are difficult, interpersonal relationships are complex, and
human and emotional factors are involved, judging according to legal principles, common sense,
and insights, and properly handling them are subtle arts. Even if AI is embedded into probabi-
listic procedures and has deep-learning ability, it is difficult to make a fair and reasonable, stable,
and convincing case judgment.35
More importantly, excessive expectation or misunderstanding of AI may lead to the collapse
of the system design of the modern rule of law, causing contradictions, confusion, and even a
social structure that is out of control. In the modern state-governance system, the court is the
calibrator of the relationship between government power and individual rights, and is key to
the formation and maintenance of order. To ensure the impartiality and authority of the judiciary,
judges are given the privilege of certain preferences in the system—obeying the law only to
prevent any external interference, ensuring accountability; the final power given to the applica-
tion of law and legal judgment; occupational security, including exemption, is provided on the
premise of procedural justice. The reason for the legitimacy of such identity privilege is that the
judge’s selection of criteria is strict enough to ensure the legitimacy of their knowledge and
character; the trial process is open, transparent, and fair, and can prevent unprincipled com-
promises and black-box operation; any decision must go through the baptism of confrontational
debates and proofs, often taking the third-instance final review, based on legal reasoning and full
consideration. It is for these reasons that the final judgment is also the best time to settle any
dispute. Obviously, after the trial space is reformed in an unrestrained “artificial intelligence
”
way, such a judge’s position will inevitably be greatly shaken, and it may cause a comprehensive
deconstruction of the judicial system and even judicial power.
Letting AI automatically generate judgments to correct deviations in accordance with the
law of big-data correction will inevitably form a dual structure of the trial subject and even
lead to the pluralization of the decision-makers. In fact, there will be a situation in which the
data-processing company of the software and the judge jointly make decisions. Once the
judge and the software jointly function, the power boundary becomes blurred and the judi-
cial accountability system can easily lose its strength. There is at least the possibility of
shirking responsibility by the judge by the machine taking more influence in the decision
of the ruling. In addition, if the wisdom court’s idea flows to one-sided and extreme, and
popularizes the mechanism for computers to automatically generate judgments, it will inevi-
tably overthrow the ruling process inside the trial. Of course, the computer-generated sen-
tence is only a reference text that the judge also needs to review and correct but, under the
double pressure of the cases accepted and the rigid period of the statutory trial period, plus

35. On the evening of 15 October 2017, I was invited to give a speech and discussion at Shanghai Jiao Tong
University Alumni Association at Microsoft Headquarters in Seattle. I discussed AI and justice with digital-informa-
tion-technology experts, legal consultants, and lawyers of the company and other multinational corporations. The rela-
tionship in which everyone believes that the use of big data, search technology, and AI to develop a trial-assistance
system to reduce the burden of transactional work is promising, but the automatic generation of robot judges and judg-
ments is impossible in the foreseeable future, because the judiciary and the judgment must not only understand the laws
and facts of the requirements, but also understand people’s minds. It must have a profound and comprehensive under-
standing and insight into the context, and resolve the disputes and consider the corresponding relationship between the
ripped peripheral relations.

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 526 A S I A N J O U R N A L O F L A W A N D S O C I E T Y

the inertia of the person, the judge may rely heavily on the reference judgment sooner or
later. Once such a situation is a commonplace, algorithmic dictatorship cannot be avoided.
Big data will also make mistakes, such as quality problems and deviations in existing judg-
ments unintentionally fixed, suppressing the dynamic mechanism of discovering legal
rights, innovation norms, and promoting institutional evolution through cases. More impor-
tantly, big data and AI will become the “guillotine” of the court debate, resulting in an
atmosphere that “all depends on established software, (and) face-to-face dialogue arguments
are nothing,” making China inherently weak. Legal reasoning, legal discussion, and legal
interpretation will become less important. This means a fundamental change in the structure
and function of the modern judicial process so that judges are losing the institutional and
technical guarantees of “doing at will without breaking rules” in free evaluation of the
evidence.
Legal data with diversified sources and expanding scales could not be perfect. Moreover,
there are still serious quality problems in the process of rapid development in China and
there are even problems of data fraud based on performance considerations.36 Under such
circumstances, computer algorithms constitute a black box. If there is one-sided overempha-
sis on the application of big data and AI in the judiciary, it is easy to make the algorithm and
inference inherit the drawbacks and prejudices of the original judicial practice, and some
defects will even be magnified. If the inadvertent judicial system is dominated by the algo-
rithmic theory, then legal justice will inevitably be kidnapped by the algorithm and kid-
napped by the data processor. To prevent such bleak prospects, it is necessary to use the
opportunity of the court’s organization law and the revision of the judges’ law to clearly
define the main body of the trial mechanism. Judging from the current draft revision of
the law and the content of the discussion, the changes in the era of “Internet
” and “artificial
intelligence
” have not been reflected in the legislative process in a timely and sufficient
manner. For example, the organization law of the court does not clearly stipulate the rights
and obligations of judicial assistants, which is incompatible with the current changes in the
trial; the data-processing department and computer engineers are having a profound impact
on the trial of the case, and the court’s information-processing outsourcing business is huge.
These new phenomena are subject to further clear definition by law. In addition, in the face
of laws and computer-program coding, and the control of big-data algorithms, the principle
of “consideration of thinking” should be emphasized and give sufficient space for judges to
comprehensively name and make decisions. Furthermore, how is the automatically gener-
ated technology compatible with legal interpretation and legal communication, and how will
AI be prevented from compressing the space for legal discussion? How can it be ensured that
the three elements of the procedure, debate, and consensus in the era of AI are not only
maintained, but also further strengthened? How can a new solid foundation for the legal
profession be provided? These issues must be seriously considered.

36. According to the results of the 2015 survey conducted by Shanghai First Intermediate People’s Court, 43% of
the judges believed that the information collection of the case was not targeted and the degree of adaptation to new law
was not enough; 50% of the judges believed that the information points were set too much. For some, there is no post-
application for information-point entry. More importantly, there is a lack of uniform standards for the collection and
configuration of various pieces of information. The phenomenon of “information islanding” is serious and restricts the
intelligent application of judicial big data. In addition, 61.59% of the judges believed that “the accuracy of case infor-
mation entry is not enough, and the key information lacks the automatic verification function.” For details, please refer
to the research report of the research group RR (2017).

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 THE CHANGE OF JUDICIAL POWER IN CHINA 527

In the new social context, in judging judicial responsibility and judicial democracy, the two
major problems that the system design must face are how to prevent the burden of judges from
being too heavy and how to prevent judges from trying to shirk their responsibility. China’s
solution to the problem of the heavy burden of responsibility is mainly to develop the means
of dispute settlement outside the court or the direct democratization of the judicial system and to
improve the efficiency and decentralization of responsibility by means of information technol-
ogy. It is easy to form a channel for shirking responsibility and transferring responsibility under
the condition that the subject of the trial is diversified and the trial standards are diversified. The
computer software system can ensure the whole process being left in the mark and it may be able
to alleviate similar problems to some extent. However, the practice of data cages and the auto-
matic generation of judgments can easily lead to the situation of algorithms governing the trial,
making the judges incapable of being responsible, and it is difficult to carry out real and effective
accountability for the results of the judges handling the case. Once the situation of algorithmic
autocracy is formed, the meaning of court debate, appeal review, and expert discretion will be
relative. The result will lead to the objectification of judges, the weakening of judicial authority,
the deconstruction of the trial system, and even complete legal nihilism.
In general, the main functions of the legal system are to form order, resolve disputes,
provide clear expectations, and justify the value. The key to the modernization of the so-
called national governance system and governance capacity lies in the concept of legality,
the regulation of the operation of public power, and the cultivation of the behaviour and
mode of thinking of the government and all people in observing legal rules. To this end,
the legal system, especially the trial system, must have sufficient rationality and neutrality
to improve the efficiency and fairness of the entire society. Law enforcers and judicial peo-
ple have always faced various conflicts of interest and value. To effectively resolve conflicts,
legal reasoning and legal arguments must abandon the attitude of self-respect, must be good
at listening to different opinions and arguments, and must make decisions that are univer-
sally convincing, so as both sides accept and agree. Such fundamental characteristics deter-
mine the position of legal research and the purpose of legal education. For the legal-decision
process, no matter which viewpoint can be raised in an equal and open program arena, it is
necessary to experience the baptism of persuasive competition. In other words, the essence
of the rule of law is to convince people, not to force people. The neutrality of judicial power
is bound to adopt an inclusive attitude towards different interests and value judgments. The
finality of judicial power is destined to choose a correct final solution through debate on the
survival of the fittest mechanism. These programs must meet at least two criteria: first, they
must be completely self-consistent in logic and should never contradict each other; second,
they must reflect the maximum common divisor of society in value judgment and have the
maximum general persuasion. In the face of such a modern legal system, AI, big data, cloud
computing, and information technology are just auxiliary means to achieve legal justice.

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