Research On The Protection Of The Parties’ Procedural Option In Civil Online Litigation

With the development of information and communication technology,online litigation has been widely used as a new form of litigation.In the binary process of online litigation and offline litigation,the time,resources,and labor costs invested by the parties in the litigation process are different,and the procedural experience and protection of procedural interests obtained by the parties in the two processes are also different.Granting the parties to civil online litigation the right to choose a procedural system that is more conducive to balancing the pursuit of substantive and procedural interests,enhancing the parties’ credibility and acceptance of the online litigation process and results,balancing the pursuit of interests among different litigation subjects,and safeguarding the parties’ status as procedural subjects.Article 16 of the Civil Procedure Law states that when conducting online litigation activities,people’s courts should respect the right of the parties to choose their own procedures.The Online Litigation Rules of the People’s Court provide centralized provisions on the procedural options of parties involved in online litigation,including the principles of online litigation,the initiation of online litigation procedures,and asynchronous trials.However,based on relevant legislative norms and practical analysis,there are still shortcomings in the protection of the right of parties to choose their own procedures in online litigation.There are dilemmas in the protection of the right to initiate online programs,such as the lack of judges’ interpretation obligations under the positive procedural choice right,insufficient presumptive effectiveness under the negative summary procedural choice right,and incomplete rights relief mechanisms;There are issues in the protection of the right to choose the trial mode,such as the low "consent" standard for asynchronous trials and insufficient protection of the parties’ procedural choice rights in online trials;There are issues in the process of electronic delivery where "implied consent" cannot provide effective protection for the "three documents" of electronic delivery,and the application level of the delivery method is unclear,which infringes on the parties’ procedural choice rights;There are issues of inconsistent rights and responsibilities among the parties involved in the online program conversion,as well as the lack of asynchronous trial program conversion;Based on this,in order to achieve the protection of the party’s procedural choice right,it is necessary to comprehensively understand the current situation of the party’s procedural choice right protection in civil online litigation in China through value analysis and empirical analysis methods.Guided by the problems existing in current legislation and judicial practice,targeted suggestions should be proposed to refine the "Online Litigation Rules" on the party’s right to initiate online procedures,the right to choose trial modes,and Provisions on the protection of the right to choose the conversion of online litigation procedures and the right to choose the method of delivery.In order to alleviate the tension between innovation in online litigation procedures and legal stability,it is indeed necessary to expand the interpretation obligation of judges in the active procedure selection right,clarify the presumed effectiveness in the summary procedure selection right,and improve the relief mechanism of online litigation procedure selection right.Online litigation,as the core link of the entire litigation,should fully protect the parties’ right to choose the trial mode,and clarify that the online trial adopts the "unilateral express" consent standard;The asynchronous trial adopts the "express consent" standard.As one of the elements of procedural protection in the Civil Procedure Law,the delivery system should limit the application of the "implied consent" rule and clarify the applicable level of the delivery method.As a remedy for the parties involved in online litigation,in order to achieve equal protection of the rights and interests of the parties,different conditions should be set for the application of procedure conversion,and a conversion procedure from asynchronous trial to synchronous trial should be constructed.