A Study On The Online Litigation Procedural Option Right

Online litigation is a product of responding to the new needs of the Internet era.The Online Litigation Rules of the People’s Courts(hereinafter referred to as the Online Litigation Rules),issued by the Supreme People’s Court in May 2021,for the first time built a system of online litigation rules covering the entire process of litigation,providing clear procedural guidelines for all litigation subjects to participate in online litigation.Among them,the right to choose online litigation procedures as an important part of the Online Litigation Rules,fully reflects the respect and protection of the subject status and procedural rights of the parties,but the current system design and practice of the right to choose online litigation procedures are still in urgent need of resolution of the dilemma,based on this,this article on the nature of the right to choose online litigation procedures,theoretical basis,legislative provisions and judicial practice in four aspects This thesis discusses the nature,theoretical basis,legislative provisions and judicial practice of the right of choice in online litigation.The right of procedural choice is derived from the theory of procedural subjectivity,which gives the parties the right to choose their own dispute resolution methods and related procedural matters,and is an inevitable requirement to respond to the diverse demands of the parties.The birth of online litigation has not only extended the scope of procedural choice for parties,but also enriched the content of procedural choice.The court should not interfere too much with the parties’ procedural choices,and should fully respect the parties’ right to dispose of procedural matters,reflecting the ideological basis of "justice for the people" and the value of digital justice.The Online Litigation Rules stipulate that the application of online litigation is based on the principle of unilateral choice and the exception of consensual choice,while the Provisions on Certain Issues Concerning the Trial of Cases in Internet Courts(hereinafter referred to as the Internet Court Trial Provisions)establish the rule that "the entire online trial is the principle and the offline trial is the exception".The Online Litigation Rules give parties the right of remorse and the right to object,and guarantee the exercise of their procedural options,but the provisions on the right to object and the judge’s obligation to clarify are not detailed and specific enough,and lack quick,effective and operational remedies.In order to guide the parties to correctly understand online litigation,so as to help them make rational procedural choices,the Online Litigation Rules require judges to fulfill their obligation to clarify,but the provisions on the obligation to clarify are rather vague.In judicial practice,the recognition of online litigation has increased,but the "digital divide",distrust of data security,and equipment affecting the effectiveness of online litigation still exist,seriously undermining the willingness of parties to choose online litigation,and most parties still prefer the traditional litigation model.Therefore,the judge’s duty to clarify should be refined,and the content of the duty to clarify and the way to exercise it should be improved.The government should improve the online and offline procedural conversion mechanism,improve the right of remorse,the right to object mechanism,smooth the online and offline procedural conversion channels,strictly punish the abuse of procedural options,infringement of procedural options,to protect the rights and interests of the parties to online litigation procedural options.As for the construction of the online litigation platform,the ease of operation and security of the online litigation platform will be improved,and the official initiative to publicize the platform’s functions will be taken to avoid the risks associated with platform diversification.The right of procedural choice is essentially to protect the parties’ right to litigation,but compulsory application of online litigation by specific subjects is conducive to enhancing the popularity of online litigation as a whole,and the principle that the Internet Court provides for online hearing of Internet-related cases proves the feasibility of compulsory application of the obligation.Therefore,without prejudice to the procedural interests of specific subjects,it is necessary to give specific subjects the obligation to promote online litigation.