Exploration on the New Legal Discovery Model of China's Smart Judiciary

서지정보

· 발행기관 : 중국지역학회
· 수록지 정보 : 중국지역연구 / 9권 / 3호 / 219 ~ 249페이지
· 저자명 : 张光君, 张翔

초록

In the process of promoting the upgrading of judicial intelligence, in order to realize the transformation of the effect of adjudication from “visible justice”―“expressing justice”― “acceptable justice”, the Supreme People’s Court of China proposed a new model of legal application based on the “retrieve system for similar cases” and supported by “brain-like intelligence technology”. However, due to the lack of innovation in legal methodology adapted to the big data of similar cases, judges still make legal discovery and “legal interpretation and reasoning” based on the small data. However, the wisdom of the legal community extracted on the basis of big data is difficult to have a substantial impact on the judge’s testimony from the level of legal methods. This makes the retrieval system of similar cases into a “chicken rib”. In order to fundamentally reverse the current problems of unclear methods of legal discovery and the ineffectiveness of the retrieval system for similar cases, it is urgent to stimulate the potential of big data technology. That is to say, through the transformation of the underlying thinking paradigm, a new mode of legal discovery is constructed, and then the efficiency of the retrieval system for similar cases is fully released. This paper adheres to the theory of “technology-institutional co-evolution” and follows the approach of “What (meaning of new legal discovery)-Why (value of new legal discovery)-How (implementation of new legal discovery)”. At the same time, this paper adopts the research methods such as the comparison of the principles of legal discovery in the two legal systems and the empirical analysis of the normative documents of the judiciary. The new model of legal discovery is based on the retrieval system of similar cases. After realizing the intelligent identification of similar cases with the help of big data, the “common factors” of similar cases are extracted through the comparison of types. Then, through the two-way communication between the abstract norm and the pending facts, the process realizes the finalization of specific specifications within the scope of the semantic range of the abstract norm. This model is conducive to unifying the standards for the application of the law and facilitates the same judgment in similar cases. In order to implement this model and improve the level of intellectualization in legal discovery, the main body of the retrieval report for similar cases should be changed from “the judge's individual combat” to “the coordinated attack of the judge + judge's assistant + lawyer”. After reducing unnecessary restrictions on starting conditions, the search is carried out for all valid cases. Next, the process of judging the similarity of similar cases is included in the presentation content of the retrieval report of similar cases. At the same time, the ranking of similar cases is based on “similarity of similar cases”, supplemented by “level of effectiveness”.

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