Jurisprudential conflict and value balance in the application of judicial big data
——Starting from the judicial big data ban in France
Author: Wang Lusheng, researcher of Law School of Southeast University, researcher of judicial big data research base of people's Court of Southeast University, doctor of law.
Source: comparative law research, No. 2, 2020.
Abstract: Article 33 of law 2019-222 issued by the French legislature in March 2019 prohibits data analysis, comparison, evaluation and prediction based on the identity of judges, thus limiting the application of big data in judgments to relatively limited areas. The promulgation of the above prohibition is the response of the legislature to the jurisprudential conflict between the application of judicial big data and the privacy of judges, judicial independence, judicial authority and judicial justice. The deep reason is that the reformers choose the compromise scheme after balancing the values of judicial openness and personal information, judicial authority and freedom of speech, judicial independence and technicalism, judges' individual and the court as a whole. The discussion on prohibition is of great significance to standardize the application of judicial big data in China. It is necessary to introduce the concept of personal information protection in the application of judicial big data in our country, so as to eliminate the misunderstanding of one-sided technicism. On this basis, promote the routine filing and ethical review of the application of judicial big data, clarify the non binding application principle of judicial big data application, and establish the negative list system of judicial big data application.
Key words: judicial big data; judge portrait; judicial publicity; predictive justice; judicial reform in France
On June 4, 2019, the well-known magazine "artistic lawyer" published an article entitled "France forbids the violator of an analysis judge to be sentenced to five years' imprisonment", which attracted the attention of the global scientific and legal circles. "France forbids artificial intelligence guidance", "France forbids judgment result prediction", "France forbids big data analysis on judges", "France forbids legal data analysis", "France forbids the legal use of public data" and other interpretations abound in the public, and the arguments in the field of legal science and technology in the cold winter will be on the rise. The question before the legal science and technology circles and big data researchers is: with the digitalization and openness of court decisions in various countries, the application of judicial big data has increasingly become a global trend. Why should France go against the trend in this context? Will this choice have domino effect and lead to global imitation? What are the implications for the emerging application of China's judicial big data? This article will take the French judicial big data ban as the starting point, from the perspective of legal conflict and value balance, analyze the causes of its legislation and its system background, and put forward countermeasures based on the current situation of China's judicial big data application.
1、 Text interpretation: overview of French judicial big data ban
On March 23, 2019, the French legislature promulgated Law No. 2019-222 (de programming 2018-2022 et de r é form pour la justice, hereinafter referred to as the judicial reform law) based on the judicial reform framework of 2018-2022, including the controversial and misread Article 33. The main part of the judicial reform law can be seen as a detailed description of the contents of the specific provisions of many laws in France, which are similar in form to the legal amendments; the annex report part is the specific planning of judicial reform, which is similar in form to the outline of judicial reform in China, so it is not the law in the standard sense that we usually understand. The article 33 concerned in this paper is actually a description of the modification of the specific provisions of the law, such as code de commerce, code de justice administrative, code de l'organization judicial, etc. Among them, the judicial big data ban is mainly reflected in the amendment of Article 33 of the judicial reform law to article L.10 of the administrative judicial code and article l.111-13 of the judicial organization code. As the revised contents of the two are only slightly different from some of the expressions, the author only shows the revised original text of the former:
Amend article L.10 of the administrative and judicial code and replace paragraphs 2 and 3 with the following three paragraphs:
Without prejudice to the special provisions on access to and publication of judicial decisions, decisions made by the court shall be made available to the public free of charge in electronic form.
As a limitation of the preceding paragraph, the names of natural persons mentioned in the judgment, whether parties or third parties, need to be anonymized before being made public. If the disclosure of the relevant information will damage the safety or privacy of the relevant person or the person close to it, the identity information of any identifiable party, third party, judge and clerk shall also be kept confidential.
The identity information of judges and registry members shall not be used to evaluate, analyse, compare or predict their actual or assumed professional practices. Those who violate the prohibition shall be punished according to the provisions of criminal law 228-18, 226-24 and 226-31, but shall not affect the measures and sanctions on data processing and filing in Law No. 78-17 of January 6, 1978.
From the perspective of the legislative text, the core content of Article 33 of the judicial reform law on the revision of article L.10 of the administrative judicial code and article l.111-13 of the judicial organization code includes three points: the first point concerns the judicial openness, according to which, in principle, the judgments of all courts in France should be electronic and provided to the public free of charge. This is a further deepening of the reform of French judicial openness in 2016. For quite a long time, the publication of French judicial precedents was mainly selected by the Supreme Court and the State Council (Le Conseil d'etat), with a limited proportion of publicity and a fragmented and incomplete state. Although some court decisions began to be published on the public website (legifrance. Gouv. FR) after the promulgation of Law No. 2002-1064 in 2002, until 2016, the proportion of public decisions was less than 1% of the total judgments in France. The 2016 law of the digital Republic (LOI R é Publique num é rique, also known as "le Maire law") seeks to change the current situation of the lack of publicity of judgments. Articles 20 and 21 of the act amend the code of administrative justice and the code of judicial organizations respectively, requiring that all court decisions be made free of charge to the public on the basis of respecting the privacy of the persons concerned and assessing the risk of re identification. This undoubtedly "deprives" France's Supreme Court and State Council of the power of selective public judgment, which is a milestone in the process of French judicial reform. However, although "lemer law" stipulates that "free provision" is needed, there is no clear way to provide it, and there are some disputes in the process of law application. Therefore, the judicial reform act of 2019 further clarifies that the judgment is provided free of charge in "electronic form". The second is to supplement the first point, that is, to keep the name and identity information of specific natural persons confidential on the basis of full disclosure of the instrument. Compared with "le Maire law", the new law clearly includes the identity information of judges and clerks in the judgment into the scope of protection. The third point is the judicial big data "prohibition clause" (hereinafter referred to as "prohibition clause") which is hotly discussed by the domestic and foreign legal science and technology circles. Combined with the punishment measures listed in articles 226-18, 226-24 and 226-31 of French Criminal Law, it can be found that the punishment of "prohibition clause" is rather severe, and the violator can be sentenced to a maximum of five years' imprisonment and a fine of 300000 euros. Only in the literal sense, the "prohibition clause" does not limit the analysis methods and applicable objects. Therefore, in theory, it can cover all the individuals, research institutions and technology companies engaged in legal text big data mining, even small data analysis. However, according to the legislative logic and the original intention of the law, the "prohibition clause" is mainly aimed at big data application. Before the promulgation of the judicial reform law, the judicial judgment documents in France were not fully electronic and open, and legal technology enterprises could not obtain enough data to conduct accurate big data analysis on all French judges / registrars. After the promulgation of the judicial reform law, technology enterprises could theoretically obtain data sets close to the full samples of French national court decisions, thus obtaining The data base of big data application. Therefore, the "prohibition clause" is actually a direct restriction on the application of judicial big data (evaluation, analysis, comparison, prediction, etc.) that may be caused by the full online publication of French judicial judgment documents. This also explains why the attention to the "prohibition clause" mainly comes from the legal science and technology circles of various countries. Before that, the judicial organs of EU countries could not support intelligent technology at the official level, but did not prohibit technology companies, research institutions and law firms from trying and applying this aspect. The "ban clause" breaks the above balance and tacit understanding, and makes the whole French and even global legal technology industry "mournful".
However, if we analyze the "prohibition clause" in an interpretative sense, we will find that many media reports are not accurate or even misunderstood. In other words, the "prohibition clause" has a very clear direction, that is, it is not allowed to "evaluate, analyze, compare or predict" based on "the identity of judges and members of the registry (d'identit é)". It can be seen that if the relevant application is not based on the status of judge / Clerk, it is completely legal, such as analyzing the handling efficiency of specific court cases, predicting the support of specific court for specific cases, etc. In this sense, the French legislation does not prohibit the prediction of judgment, nor the big data analysis of judgment documents, but the directional mining based on identity. In strict technical terms, the "prohibition clause" prohibits the application of big data in judgment based on the "portrait" of judge / Clerk. From the perspective of the discussion process of the draft, legislators focus on the analysis, prediction and evaluation of judge's identity "reuse" and "portrait" based on the judgment big data. According to the existing application scenarios of judicial big data, the following four applications are mainly prohibited: (1) consistency analysis: compare the case handling data of specific judges with the big data of other judges handling similar cases, and analyze the consistency between the specific cases of specific judges and the whole judicial system. (2) Continuity analysis: through the comparison between the specific cases in which a particular judge is working and the cases with similar history, it analyzes whether the judge's judgment standard has continuity. (3) Analysis of legality: through the excavation of cases handled by specific judges, analyze whether they conform to the relevant provisions of the current law. (4) Predictive analysis: through the mining of cases handled by specific judges, we can predict the possible results of the cases they are handling, which is commonly known as big data decision prediction. Therefore, the "prohibition clause" does not prohibit all judicial big data applications, and big data applications for the entire judicial system and even specific courts still have legitimacy.
Of course, the introduction of the "prohibition clause" was not smooth sailing, and even caused constitutional disputes for a time. Opponents believe that judicial data analysis based on the identity of judges can help to obtain a more comprehensive understanding of the actual operation of justice. The "prohibition clause" violates the constitutional right of citizens to obtain a fair trial and the law. However, in decision 2019-778, the French Constitutional Council ruled that the "prohibition clause" did not cause any unreasonable difference between the parties, nor did it damage the balance of the parties and the right to equal procedures. "Prohibition clause"