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2022-04-13 13:26:03 Voices

Over the past two decades, China has made improving judicial transparency a key plank of its reform platform. Many court hearings are videotaped or livestreamed, and judges are increasingly expected to explain their reasoning during sentencing. But arguably no transparency measure has been more impactful than the decision to make millions of court decisions freely accessible online.

In 2013, China’s Supreme People’s Court officially launched China Judgements Online, a free online database containing decisions from all levels of China’s legal system, from local courts all the way up to the SPC itself. By 2020, the database was home to more than 100 million documents. CJO has not only made it easier for legal practitioners to carry out research on past cases and legal trends; it has also provided the public with a rare glimpse into China’s judicial process.

But now, that may be coming to an end. Zhou Yuzhong, a lawyer, found that courts uploaded slightly more than 100,000 judicial documents in 2021, a nearly 80% drop from the previous year. Meanwhile, a number of rulings have quietly disappeared from the database.

The authorities have yet to provide an official explanation for either trend. It’s true that disclosing rulings in certain controversial legal cases has polarized public opinion and threatened to undermine the authority of the court system, but there are also legitimate privacy concerns surrounding the CJO database, and public dissatisfaction regarding the posting of court decisions has been brewing for years. Some plaintiffs have faced difficulties landing a job after suing a former employer; others worry of discrimination if their HIV status is disclosed in court filings.

While it is not completely clear what is behind the reduction in CJO documentation, it’s worth examining the problem from another angle: that is, what is the Chinese government trying to achieve by publishing court decisions?

The mainstream view is that publishing judicial documents was meant to promote judicial reform and enhance courts’ credibility. Prior to the reform, the judicial process was a black box, and powerful litigants exploited this fact to pressure weaker parties to agree to unfavorable settlements. By making judicial documents widely available, Chinese reformers hoped to open a window into the judicial process, allow the public to supervise judges’ decisions, apply pressure on those involved to accept and obey the judgment, and consolidate public trust in the legal process.

The Supreme People’s Court’s actions lend credence to the mainstream interpretation of the transparency reforms. The SPC released the “Provisions on the Publication of Judgments on the Internet by the People’s Courts” in 2010, followed by updated versions in 2013 and 2016. Together, these documents laid the groundwork for a nationwide system of judicial transparency in which rulings were to be made public by default, with exceptions only for certain cases. The frequency with which the court updated its rules reflects the determination of the authorities to promote the system.

However, observers of China’s justice system often overlook another goal the architects of judicial reform had in mind when ordering the release of judicial documents: the promotion of “social credit.”

Although the intentions and extent of China’s emerging social credit system are open to interpretation, it’s clear that the SPC sees judicial transparency as a tool for monitoring social credit and boosting business confidence. China lacks a comprehensive social credit system, resulting in high costs for both social governance and private transactions. Noncompliance with court orders is a serious problem in China, as are wage arrears and defaults. To address these issues, policymakers have enlisted the courts to motivate individuals and corporate actors honor their obligations, including by creating a consumption “blacklist” for people who fail to fulfill to do so, which allows judges to ban individuals from making high-end purchases until they pay off their debts.

The authorities’ interest in using judicial transparency to boost the social credit system is reflected in both the 2013 and 2016 versions of the SPC’s ‘Provisions.’

Judicial documents, which record authoritative information regarding the activities of the involved parties, are a goldmine of data relevant to determining a person’s trustworthiness. The authorities’ interest in using judicial transparency to boost the social credit system is reflected in both the 2013 and 2016 versions of the SPC’s “Provisions.” Over the course of these two updates, the Supreme People’s Court removed the option for the involved parties to decide whether case documents will be made public, emphasized the need to disclose the full names, dates of birth, and other identifying information of everyone involved in a case, canceled exceptions to disclosure rules for misdemeanors, and further reduced the types of documents withheld from the public.

In a 2016 opinion piece published by the People’s Court Daily, a newspaper run by the Supreme People’s Court, an SPC official explicitly connected social credit and judicial transparency: “The publishing of judicial documents online can open up citizens or legal persons who seriously violate social integrity to greater scrutiny and promote the construction of a social credit system.”

In 2019, in response to a lawmaker’s question about whether it was possible to learn from the experience of other countries by anonymizing parties in judicial documents, the Supreme People’s Court replied that doing so would reduce the readability of documents and weaken the effectiveness of judicial transparency. More importantly, the court explained, anonymization “does not align with the aim of judicial openness — that is, promoting the construction of a social credit system.” Influenced by this thinking, the inclusion of personal information in publicly available judicial documents became more widespread in the years following the reforms.

In short, the 2013 and 2016 updates sent a clear message that public interest and the need to establish a social credit system should trump the right to privacy in most cases.

But resistance to this approach has been mounting for some time. While reformers tend to see judicial transparency as an important tool for promoting trust, we cannot overlook the potential negative consequences of transparency for those involved. Chinese society has a long tradition of aversion to litigation in favor of settling disputes privately. There are signs that is beginning to change, but if initiating formal litigation means one’s personal information will be published online where anyone can read it, people may be discouraged from filing in court — hindering the original goal of improving judicial credibility.

Under the current circumstances, it’s worth asking whether the courts are really the right tool for promoting social credit in the first place. The judicial process is a major part of social governance, but its role should be the resolution of disputes through neutral adjudication, rather than by disciplining or intimidating the public. Likewise, the goal of increasing public access to judicial documents should be enabling legal practitioners and the public to determine whether judges are accurately and rationally applying the law in their judgments, not giving observers the ability to glean private information about litigants.

Publishing judicial documents in online databases open to the public for retrieval and research is a necessary step to promoting the rule of law, a goal Chinese courts have made solid progress toward over the past 12 years. They should not abandon their hard-earned progress now. But the system must be amended to ensure the focus stays on supervising the quality of judgments and, to that end, courts should alleviate the public’s legitimate concerns over personal privacy.

Translator: David Ball; editors: Cai Yineng and Kilian O’Donnell; portrait artist: Zhou Zhen.

(Header image: IC)