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CHINA LEGAL SCIENCE 2019年第4期 | 在线纠纷解决体系的实践探索与发展路径
日期:20-03-28 来源:CHINA LEGAL SCIENCE 2019年第4期 作者:zzs

ON PRACTICAL EXPLORATION AND DEVELOPMENT PATH OF ONLINE DISPUTE RESOLUTION SYSTEM


Yu Zhiqiang & Dong Peiwen


TABLE OF CONTENTS


I. BREAKTHROUGH AND DEVELOPMENT: THE DILEMMA OF ONLINE                                  DISPUTE RESOLUTION SYSTEM IN PRACTICE

A. Lack of a Unified Online Dispute Resolution Platform

B. Low Social Awareness

C. Lack of Corresponding Legal Protection

II. INNOVATION AND PRACTICE: THE ZHEJIANG MODEL OF ONLINE                                  DISPUTE RESOLUTION SYSTEM PRACTICE

A. Constructing an Online Diversified Resolution Platform of Contradiction and                Dispute

B. Effect and Evaluation of the Online Dispute Resolution Platform of Zhejiang

C. Problems in Practical Exploration

III. REFERENCE AND ENLIGHTENMENT: ANALYSIS OF THE EXTRATERRITORIAL ONLINE      DISPUTE RESOLUTION SYSTEM

A. Application of the Online Dispute Resolution Mechanism in the US

B. Online Dispute Resolution Mechanism of the EU

IV. REFLECTION AND RECONSTRUCTION: DEVELOPMENT PATH OF ONLINE                      DISPUTE RESOLUTION SYSTEM IN CHINA

A. Internal Construction Path of the Online Dispute Resolution Mechanism

B. Improving the Construction of an Integrated Online Dispute Resolution Platform

C. External Countermeasures for Constructing an Online Dispute Resolution System

V.  CONCLUSION


With the continuous application and improvement of Internet technology, the global political, economic, cultural and social development has been affected to varying degrees and the difficulty of resolving social disputes in various countries is also increasing. Under the background of the Internet, the way of dispute resolution is transformed by science and technology, but this transformation is not simply to apply science and technology to the traditional mode of dispute resolution, but to reconstruct a new online dispute resolution system based on science and technology and the Internet thinking, which will be more convenient for parties to resolve disputes, better achieve fairness and justice and better meet the requirements of the new era. This will play a positive role in improving the level of social governance, reducing the occurrence of disputes, improving the efficiency of dispute resolution and reducing the cost of justice. Through the research on practice, legislation and related theoretical issues at home and abroad, it is found that China has not yet established an online dispute resolution system, its exploration of an online dispute resolution mechanism started late and there are still many problems at the legal and technical levels. It is necessary to absorb mature practical experience from other countries in the light of the current situation of the development of an online dispute resolution mechanism in China, improve relevant systems, continue to develop Internet technology and enhance the trust of an online dispute resolution mechanism, and build an online dispute resolution system in line with the international community. At the same time, in the process of discussing online dispute resolution system, considerations about the innovation and development path of online dispute resolution mechanism are also put forward. 


I. BREAKTHROUGH AND DEVELOPMENT: THE DILEMMA OF ONLINE DISPUTE RESOLUTION SYSTEM IN PRACTICE


Online dispute resolution system is an innovative dispute resolution mode that uses network science and technology to resolve disputes across time, space and region. For the definition of online dispute resolution system, there has not been a unified standard internationally. Dispute resolution whose main process is carried out in an online manner is the online dispute resolution mechanism (ODR), thus the ODR includes online litigation and online alternative dispute resolution mechanism. The ODR is ‘a general term for the use of Internet applications to resolve various disputes online, including online arbitration, online mediation and other means of dispute resolution.’ This mechanism excludes court online litigation and is a result of the combination of Alternative Dispute Resolution (ADR) and Internet information technology. Both the ODR and court online litigation together constitute the online dispute resolution system.


At present, China is striving to promote the development of a new dispute resolution mechanism, the ODR, which started late, but has received much attention from the academic community. By focusing on the enlightenment of the EU’s Regulation on Consumer ODR, some scholars have explored the China-oriented construction of unified online dispute resolution system and analyzed its necessity. From the perspective of development path, some scholars have established the two-path institutional framework for the the ODR, namely endogenous and exogenous paths, analyzed domestic and foreign practical experiences and predicted the future development trend of an Internet dispute resolution and its mechanism. Most relevant researches have analyzed the important role of the ODR in the Internet era and explored, mainly by analyzing the comments on the ODR regulation of the EU, the establishment of an ODR in China, but comprehensive and in-depth studies of an online dispute resolution system are very rare. The purpose of constructing an online dispute resolution system in this paper is to provide relief to the damaged rights with the least cost, restore the damaged social order with the highest efficiency and at the same time improve the society governance to the greatest extent under a complete system.


A. Lack of a Unified Online Dispute Resolution Platform


Positively responding to the central government policy, China has learned from foreign research results and has been committed to constructing an online dispute resolution platform with Chinese characteristics on the basis of Internet technology. Due to the late development of an ODR in China and the lack of unified online dispute resolution platform, data and resources of dispute resolution cannot be shared. Therefore, existing online dispute resolution platforms cannot realize information interconnection and interoperability, and are basically separated from each other, which may lead to repeated construction of platforms. Departments at all levels have taken different measures around relevant mechanisms, but for the lack of overall planning and because there exist conflicts and overlapping functions among the measures, these measures are independent of each other and cannot form an overall synergy, and even in some cases there are mutually offsetting situations, thus affecting their overall effectiveness. Establishing unified online dispute resolution platforms is an important means to build the social governance structure of co-construction, co-governance and sharing, and to realize the modernization of social governance systems and social governance capacities.


B. Low Social Awareness


The people’s social awareness of online dispute resolution is not high. Influenced by the traditional Chinese litigation concept, people are extremely dependent on the resources provided by the state’s public power and their concept of self-governance is relatively weak in the process of litigation. When resolving disputes, the parties may prefer judicial litigation rather than an online dispute resolution platform. The reasons for this can be mainly attributed to the following points: First, the publicity and promotion of the platform is not in place and the people’s social awareness is low, so that most people do not even know there is such a mechanism and platform. Second, the people’s concept of dispute resolution is difficult to change, so that it is difficult for the concept of using an ODR to penetrate the hearts of the broad masses. Although online processing facilitates the settlement of disputes, it is difficult to enhance social trust due to potential risks. Therefore, it is necessary to emphasize the promotion and publicity of the ODR and change the people’s concept of dispute resolution.


C. Lack of Corresponding Legal Protection


According to the distinct characteristics of different development stages, the Supreme People’s Court has formulated corresponding judicial policies by absorbing the advanced practical results of various regions and actively promoted the development of an ODR in practice. However, due to the rapid development of social situation, the formulation of judicial documents tends to lag behind, so that these documents mainly have guiding characteristics but lack practical operability. Many regions have formulated some more flexible normative documents according to their actual situation. For example, Shandong Province and Xiamen City have formulated their online mediation principle and regulation. The Anhui Online Mediation Rules stipulates court online mediation, but as an internal regulation of provincial courts, it does not have legal effect. The lack of a legal protection system has made it difficult to achieve effective interconnection and interoperability between online dispute resolution platforms, thus resulting in the lack of a legal system support and protection for the specific construction of an ODR.


Since China has not legislated on the ODR, there is not the corresponding system guarantee, the legal status and legal effect of an online dispute resolution platform are not clarified, and online rulings do not have credibility. Therefore, while carrying out special legislation on the unique problems of online dispute resolution in the ‘Internet +’ era, China should also revise existing laws and regulations in a timely manner so as to promptly provide legal guarantee for the resolution of social problems.


To sum up, China has not formed a relatively complete the ODR and there are conflicts between actual operations and institutional rules. The results are as follows: the first is the lack of support of the legal system; the second is the lack of specialized sharing resources; the third is the lack of institutional design which can enhance the trust of the masses. In view of this, China urgently needs to construct an online dispute resolution system that can make use of Internet science and technology, will maximally avoid various obstacles that may result from the development differences between different regions and at the same time is legal and effective, so as to mobilize and integrate specialized mediation resources, enhance the people’s trust in online dispute resolution, and speed up the formation of a fair and just the ODR, through which a large number of disputes can be easily and efficiently resolved.


II. INNOVATION AND PRACTICE: THE ZHEJIANG PROVINCE’S MODEL OF ONLINE DISPUTE RESOLUTION SYSTEM PRACTICE


Online dispute resolution system is constructed and improved to effectively integrate online court procedures with an ODR and connect the electronic court within the court system with an online dispute resolution platform outside the court system. An open, intelligent and standardized integrated online dispute resolution platform that is oriented by low-cost and highly-efficient dispute resolution and aims at the prevention, control and resolution of disputes, is constructed through a systematic design. In compliance with the new social governance concept of co-construction and sharing  and by applying the thinking of ‘Internet +’, an online dispute resolution system is further constructed and improved to improve national modernized social governance system and meet the people’s demand for online dispute resolution.

 

A. Constructing an Online Diversified Resolution Platform of Contradiction and Dispute


1. Construction of the Online Diversified Dispute Resolution Platform. — In 2016, the Zhejiang Province took on the innovative pilot project of Integrated Network Platform for Diversified Dispute Resolution entrusted by the Committee of Political and Legal Affairs of the CPC Central Committee, to construct an online diversified dispute resolution platform, which was undertaken by the Comprehensive Management Office of Zhejiang Province and Xihu District of Hangzhou and was specifically implemented by the People’s Court of Xihu District. The Online Diversified Dispute Resolution Platform (Zhejiang ODR Platform) was launched by the People’s Court of Xihu District of Zhejiang Province in March 2017 and began to be officially promoted to the whole province in June 2018. The platform is the first integrated network platform for dispute resolution in China, which is developed by the High People’s Court of Zhejiang Province. Since its promotion in June, the platform has covered the whole Zhejiang Province, of which 89 counties (cities and districts) have set up mediation institutions on the platform.


At present, the platform has 34,752 registered mediators, 1,445 consultants, 11 docking arbitration institutions and 105 courts. As of January 10, 2019, the number of registered users, mediators and consultants of the Zhejiang ODR Platform were 664,112, 34,752 and 1,445 respectively. The total number of visits was 4,314,402, the number of intelligent consultation was 707,707, the number of manual consultation cases was 4,364, the total number of mediation cases was 397,776, the mediation success rate was 90.66 percent and the total number of successful mediation cases was 355,973. The platform’s practice of dispute resolution involves 24 types of disputes, with other cases as the bottom line. Since it was constructed from the perspective of social governance and the cause of case cannot be fully matched with that of the court, the Zhejiang ODR Platform serves as a dispute resolution platform for assisting social governance, rather than just being a service platform of the court.


By combining big data, artificial intelligence, cloud computing, and other information technologies, the Zhejiang ODR Platform integrates and optimizes traditional offline resources and new online resources and improves the docking mechanism of judicial litigation and alternative dispute resolution, thus promoting judicial litigation service providers to actively adapt to the Internet needs, and efficiently resolve disputes through intelligent services.


2. Platform’s Service Functions at the Present Stage.— The Zhejiang ODR Platform integrates the mediation forces of the province’s administrative organs, judicial organs, arbitration organs and organs of other fields. At the present stage, the platform contains five major service functions:


Legal consultation provides intelligent consultation and manual consultation. Intelligent consultation provides 24-hour online service with a question and answer module seamlessly docking life, so users can get relevant cases and related laws and regulations provided by intelligent customer service only by entering the dispute keywords. Manual consultation provides one-to-one communication with professional lawyers to meet individual legal needs. When intelligent consultation turns to manual consultation, the intelligent consultation question is directly imported to facilitate the users.


Online evaluation provides an objective evaluation of the litigation risk by relying on national big data of judgment rules, in the form of big data automatic analysis plus manual review. After the case being consulted is submitted for application, the platform will provide an evaluation report within 24 hours. After receiving an evaluation application, supported by the big data analysis of tens of millions of judgments in China, the platform will automatically identify the legal elements in the dispute description, intelligently analyze the judgment rules and automatically generate an evaluation report of the predicted results, risk warnings, countermeasures, etc., so as to enable the user to prejudge the litigation results and effectively resolve the dispute according to the recommendations.


Online mediation provides professional in-depth mediation services by combining both online and offline channels and gathering multiple high-quality dispute resolution resources, which is the primary function of the Zhejiang ODR Platform. After the parties choose a mediator through application, the mediator should contact both parties to the dispute within 3 days, make an appointment for the mediation form (online or offline) and complete the mediation within 30 days. The whole process is notified synchronously by short messages. Users conduct telephone or video mediation under the organization of the mediator. The platform provides voice conversion function, generating mediation transcripts, mediation protocols and so on by voice recognition. If the parties to the dispute reach a mediation agreement, they can also apply online for a judicial confirmation by one click.


Online arbitration provides high-quality dispute resolution services for civil and commercial subjects through leading online arbitration and full process of online operation, after the parties apply for online arbitration for disputes on which they have reached an arbitration agreement or agreed to arbitrate. Docking online arbitration service platforms of eleven arbitration institutions in the province, users can select arbitration institutions online and choose arbitrators on their own. The full process from application to the conclusion of arbitration results can be done online.


Online litigation provides litigation services of filing, proof, cross-examination, court hearing, sentencing and delivery by docking the court online filing system. The docking point is the High People’s Court Litigation Service Official Website. When the parties log on to the High People’s Court of Zhejiang Province Litigation Service Official Website and click on the consultation or mediation, they will be automatically imported into the Zhejiang ODR Platform, and guiding mediation cases in the court filing system can also be automatically imported into the Zhejiang ODR Platform, thus realizing interoperability and seamless integration between the two platforms, which is convenient for the party.


In the future, when the people encounter disputes, they only need to move their fingers to get answers to their legal questions and to prejudge the judgment results of the case on line and even to complete online mediation directly, thus resolving the  disputes without leaving home.


B. Effect and Evaluation of the Online Dispute Resolution Platform of Zhejiang


1. Long-distance Mediation of the Dispute Happened in Different Places. — A dispute over payment of arrears, which had been delayed for three years, could not be negotiated for payment due to distance issues. In this case, the dispute between different places was delivered to the judicial office, and the two parties were recommended to mediate online through the ODR platform. After mutual consent, the two parties were instructed by the judicial officer to log on to the Zhejiang ODR Platform for consultation. Under the auspices of the director, through more than half an hour of mediation, the two parties successfully reached a payment agreement. As a result, the problem of arrears that had been dragged on for three years was resolved in just over 30 minutes. Many disputes have not been able to be mediated just because of the distance between the two parties, which has even caused some minor disputes to become major events, affecting the harmony and stability of society.


The ODR platform breaks the traditional forms of dispute resolution, surpasses the limitations of space and time in the traditional forms of dispute resolution, and allows the parties to resolve disputes at anytime and anywhere without travelling, thus greatly improving the efficiency of dispute resolution. And it is also an innovative practice of online dispute resolution in the new era.


2. Powerful Functions and Convenient Use. — The Zhejiang ODR Platform has implemented the concept of no need to visit, and transformed traditional dispute resolution forms into online dispute resolution forms. It has also advanced layer by layer from consultation and evaluation to online mediation and litigation and achieved the layer-by-layer diversion and filtering of dispute resolution. In addition to the five powerful service functions, the platform is also very convenient and efficient to operate and use. To resolve disputes, users can log in to the Zhejiang ODR Platform through the computer, or through the Zhejiang ODR Platform mobile phone APP and WeChat applet, to make mobile dispute resolution more convenient and efficient. As long as you have a mobile phone or computer, you can easily resolve disputes, thus fairness and justice is truly entering thousands of household. Using online dispute resolution forms can not only reduce the people’s costs of dispute resolution, but also reduce the number of judicial litigation cases and ease the pressure of the court handling cases.


3. Providing Superior Evaluation Services. — A company fails to sign a contract, the payment is in arrears and the two parties only have e-mail statements, so the company does not know whether there is a chance to win the case. Therefore, it uses the evaluation service of the ODR platform to find dozens of similar cases through the platform and lists the laws and regulations related to this case. The common result is that the court’s judgments are consistent, and it is concluded that the statements generated by the unsigned contract can be used as evidence to prove the existence of the contractual relationship between the two parties. If the existing evidence of contractual relationship is denied, the proof of this must be given. The result of the evaluation report is that the company has a higher chance of winning the case. In addition, the evaluation report also suggests that the company can first preserve and seize the known property of the other party.


Usually, before pronouncing a judgment on a case, the judge in charge must remain neutral and cannot provide any legal opinions. However, the case is evaluated through a third-party platform so that the party can prejudge the judgment result. At present, the platform has opened up the Supreme People’s Court’s China Judgments Online Official Website, People’s Mediation and other platforms to integrate legal provisions, guiding cases and other resources, automatically extract similar judgment results and related laws and regulations and generate electronic analysis reports within one day to form a case prejudgment and provide reasonable suggestions. At present, the Zhejiang ODR Platform has a public welfare nature, providing quality evaluation services for the masses free of charge.


C. Problems in Practical Exploration


1. Geographical Scope Is Limited. — At present, the Zhejiang ODR Platform can be used through the computer port of the Zhejiang ODR Platform, the mobile app of the Zhejiang ODR and the WeChat applet. The interface is basically the same and the functions are interoperable. However, the platform has only been promoted and used in Zhejiang Province and has not yet been implemented nationwide, so it has not yet met the needs of people all over the country. Since its launch, the platform development company has also launched similar platforms in other regions, such as the Cloud Dispute Resolution of  Yunnan and the Online Diversified Dispute Resolution Platform of Shijingshan District in Beijing, but the platforms have not yet achieved interoperability among them. Therefore, to a certain extent, the limited geographical scope of the Zhejiang ODR Platform will result in the repeated establishment of online service institutions, which is not conducive to the recycling of social resources.


2. Platform Construction Is Not Perfect. — The platform functions are still not perfect. Although the Zhejiang ODR Platform already has five service functions, it is only a simple merger of various functions based on a litigation service center and the mediation platform. It has not yet paid attention to the development of new functions and establishment of a convergence mechanism. For example, in the mechanism of diversified dispute resolution, there are still many forms of dispute resolution such as administrative reconsideration, letters and visits, etc., which cannot be used online, and still need to be developed. Only in this way can we truly achieve the goal of online diversified dispute resolution.


The degree of intelligence is insufficient. Compared with the information intelligence level in the trial work, the intelligence level of the Zhejiang ODR Platform is still low due to the limitations of the development stage and physical space. Although the platform’s online mediation can generate mediation transcripts online, voice recognition can only recognize Mandarin and is still unable to accurately recognize local dialects. Therefore, the background voice recognition technology still needs to be improved. At the same time, an intelligent guidance system can be added so that the mediator can judge the emotions of the parties according to their micro-expression changes in the mediation process and the sensitive words generated by voice recognition and thus recommend appropriate mediation talking skills according to different emotions. The intelligent guidance system can rapidly improve the professional ability and work efficiency of the mediator and enhance users’ trust in the platform’s professional dispute resolution ability.


3. Information of Various Dispute Resolution Subjects Is Not Shared. — Resource information sharing is a prominent feature of the Internet, and building a platform is the most efficient way to allocate various resource information elements. An ODR platform can quickly integrate typical cases and professional mediation resources of various disputes across the country and provide strong support for parties to better participate in the practice of dispute resolution. In practice, although the platform has established the interconnection between online mediation and the court online filing system, it has not established an in-depth and efficient mechanism of resource information transmission, which makes the connection between the two not yet perfect. Due to the lack of information sharing and exchange, although some disputes have been mediated, the information cannot be shared among organizations. On the one hand, in order to protect privacy, each organization can only access its own relevant information and data, and organizations at the same level cannot access and collect information and data from each other, though organizations at higher levels can access the data related to the lower level; on the other hand, under the circumstance of imperfect information sharing and transmission mechanism, the parties may apply online for mediation by different mediators or different mediation institutions for many times based on same case facts but expressed in different ways, which together with the lack of information sharing between the mediation institution and the court, may eventually cause disputes to enter the litigation mode and make the previous mediation work become a mere formality, thus wasting platform resources and increasing the social costs of dispute resolution.


4. Publicity and Promotion Effort Is Insufficient. — The Zhejiang ODR Platform mainly relies on the Comprehensive Management Office of Zhejiang Province and the courts to promote it in the form of conferences and policy documents and cooperates with the media such as the Metropolitan Express to promote the publicity. However, no complete analysis and systematic research has been carried out exclusively on the actual needs of the applicants for dispute resolution, the multi-users of the Zhejiang ODR Platform and other parties, and no highly targeted publicity and promotion plan has yet been formed.


In order to enhance the social penetration rate of the platform, improve the user’s trust in the platform and change the user’s concept of dispute resolution, it is suggested that the publicity and promotion of the Zhejiang ODR Platform should be strengthened. For example, the Zhejiang ODR Platform can cooperate with the WeChat applet, Zhejiang News Official Website, Zhejiang Government Services Official Website, etc. to promote the social awareness rate and utilization rate of the platform. Or it can provide publicity materials to the masses at various dispute resolution places, such as comprehensive management offices, courts, judicial offices, township streets, etc., to actively guide them to choose online platforms for dispute resolution. In addition, taking the platform going online as an opportunity, a dispute resolution map that is understandable to the masses can be developed to publicize and introduce, in a community-based approach, the functions of the platform, popularize the path to the dispute resolution, and cultivate the people’s habit of using online dispute resolution.

III. REFERENCE AND ENLIGHTENMENT: ANALYSIS OF THE EXTRATERRITORIAL ONLINE DISPUTE RESOLUTION SYSTEM


The continuous use and improvement of Internet science and technology have had a certain impact on the social governance and development of all countries in the world and meantime the number of disputes arising from social governance in various countries has gradually increased. The ODR originated in the US and then spread to the European continent and the Asian region. Compared with the extraterritorial development of other countries, the EU, the US and other regions have established online dispute resolution platforms, such as the eBay Online Dispute Resolution Center in the US, Rechtwijzer 2.0 developed by the Hague International Law Association for the Dutch Legal Aid Center, the Canadian Civil Dispute Tribunal, Resolver in the UK and so on. The following is a brief introduction to the development and achievements of the ODR in the US and the EU.


A. Application of the Online Dispute Resolution Mechanism in the US


1. The ODR Originated in the US. — The ODR, whose main procedures for dispute resolution are carried out online through the Internet, originated in the US at the earliest. The idea and practice of moving diversified dispute resolution mechanism into the network environment in the US began in the 1990s. It is undeniable that the driving force behind the ODR is e-commerce disputes in the Internet environment. As the earliest e-commerce country in the world, the US is also one of the earliest countries to realize the important guarantee and promotional role of online dispute resolution for the development of e-commerce.


2. eBay in the US. — With the increasing demand for dispute resolution and taking full advantage of the characteristics of the Internet, the US established the eBay Online Dispute Resolution Center in 2010. eBay is designed based on a funnel model and adopts automatic procedure diversion mechanism for dispute resolution procedures. The platform can automatically resolve most of the simple disputes first. Through the online funnel screening and diversion, a small number of cases that cannot be automatically handled will be distributed to the manual service for resolution. The eBay dispute resolution process is designed to first give the parties time to negotiate and encourage the parties to reconcile or mediate by themselves. If the parties cannot resolve the dispute within the negotiation time, the eBay Resolution Center will use the automatic dispute resolution procedure inside the platform to punish the faulty party. If the automatic dispute resolution procedure fails to resolve the dispute, it will eventually enter the manual service procedure. China’s Taobao refund processing method also draws on eBay’s processing experience. According to eBay’s data survey, buyers and sellers have not reduced the use of eBay because of the use of online automatic dispute resolution. On the contrary, its use is conducive to resolving the disputes between buyers and sellers, thereby strengthening the user’s trust in the platform.


B. Online Dispute Resolution Mechanism of the EU


1. The EU Promoted the Development of ODR. — In order to resolve the online disputes brought about by e-commerce and regulate online dispute resolution procedures, the European Parliament and the Council of the EU promulgated the Regulation on Consumer ODR and Directive on Consumer ADR. The purpose of the ODR regulation is to achieve high-level protection of consumers’ legitimate rights and interests, to promote the sound operation of the internal markets of EU member states and to establish Europe’s ODR platform to resolve disputes between consumers and merchants through fair, transparent, effective and efficient online dispute resolution. While transforming the traditional forms of dispute resolution, the enactment of the regulation not only provides a new form of online dispute resolution and it also offers a good reference for the development of ODR in countries around the world.


2. Realistic Dilemma in Exploration. — Although the EU’s ODR has received unanimous praise, it has not yet been fully promoted. Unfortunately, the legislation of many member states does not permit the implementation of electronic out-of-court proceedings. As far as Poland is concerned, online mediation faces many difficulties. The decision of the court making the grounds for prosecution and conciliation in accordance with paragraph 2 of article 1831 of the Polish Civil Procedure Law must publish in one form the possibility of not including electronic communication as specified in the article. Within the scope of the reconciliation approved by the court in accordance with paragraph 2 of article 1831 of the Polish Civil Procedure Law, it is also impossible to use the signature in online format for the requirement of the party submitting the signature and for the minutes of the meeting containing the mediator. Moreover, in arbitration proceedings, the country’s legal system does not permit all activities in this field to be carried out by electronic means. Many EU countries lack adjustments to the terms of modern communication forms, thus slowing down the implementation of online dispute resolution technologies (such as France).


Although the EU’s ODR use in implementing ADR directives and ODR regulations in consumer disputes is expected to increase, these technologies are not common because they are only related to specific types of disputes. Mediation and arbitration procedures may seem to be supported more frequently by Internet electronic communications, but this does not mean that all their processes will be transferred to the Internet and that both mediators and arbitrators will be replaced by computer programs.


3. Constructing Experience and Enlightenment. — In order to raise the public’s awareness of the ODR and promote the use of ODR to resolve disputes, the European Parliament and the Council set up a separate network connection port in the form of interactive web pages to resolve the disputes arising from online transactions for consumers. According to article 30 of the ODR regulation, operators of e-commerce transactions within the EU should provide links to the ODR platform as well as e-mail websites within their own websites to ensure that consumers can communicate with operators in a timely manner. The main purpose of the EU’s ODR regulation is to create a one-stop online dispute resolution platform to effectively resolve online disputes.


The first is to insist on protecting the legitimate rights and interests of the parties concerned. The online dispute resolution platform is only a supplementary means of litigation procedures and its operation will not replace litigation procedures, nor will it arbitrarily deprive consumers and operators of their legal rights. The purpose of creating an ODR platform is not only to deal with disputes online, but also to improve the people’s trust in online transactions and promote the development of e-commerce market.


The second is to strengthen the protection of personal data and information. Electronic information generated by the online dispute resolution platform during its operation may be stolen, used and destroyed by hackers or other unauthorized third parties through technical means. Whether the personal information of the parties can be protected directly relates to the healthy development of ODR. While promoting the use of the ODR platform, the platform should also emphasize the protection of personal information and data. The online dispute resolution platform can be used in the context of data protection to provide effective means of addressing low-value claims and provide remedies for consumers.


The third is to provide the support of policy and technology for online dispute resolution platforms. The use and development of online dispute resolution platforms have been inseparable from the development of Internet technology since it was established. Article 19 of the ODR regulation stipulates that the European Commission should safeguard the construction and operating mechanisms of the online dispute resolution platform and provide relevant technical measures. Therefore, to ensure the smooth operation of the platform, it is necessary to encourage the development of network technology. At the same time, in the era of Internet development, technological innovation can promote effective industry norms.


IV. REFLECTION AND RECONSTRUCTION: DEVELOPMENT PATH OF ONLINE DISPUTE RESOLUTION SYSTEM IN CHINA


A. Internal Construction Path of the Online Dispute Resolution Mechanism


In order to construct an online dispute resolution system, online judicial procedures and the ODR should be effectively integrated, and the electronic court in the court system and online dispute resolution platform outside the court system should be interoperable and docked, thus constructing an integrated online dispute resolution platform.


1. Mechanism Subjects. — Clarifying the subjects of rights and obligations of an ODR is a necessary condition for promoting the development of an ODR. At present, the subjects of online dispute resolution platforms are scattered and diverse and there is no uniform regulation on the subjects of the mechanisms, which is not conducive to the further development of mechanisms. For all the subjects to be included in the system, it is necessary to make a systematic classification and regulation of them and to carry out an examination on the access qualification of each subject.


The first is the dispute resolution subject of e-commerce trading platforms. With the development of e-commerce, in order to resolve online disputes, the e-commerce platforms have designed their own online dispute resolution platforms, such as Taobao’s dispute resolution platform of the public judge team; other e-commerce platforms resolve disputes through online customer service complaints. Under the premise that complaint mechanism and mediation mechanism have been implemented within the e-commerce platform, for online disputes that cannot be resolved, a network connection port can be set up at the online dispute resolution website of the e-commerce platform to link to the unified online dispute resolution platform, so that the parties involved in the dispute may choose the subject of dispute resolution and mode of dispute resolution. By choosing whether to enter the port or not, the subject of dispute resolution of the existing e-commerce trading platforms can be regulated.


The second is the court-oriented online judicial subject. Online judicial subjects include electronic courts within the court system, online dispute resolution platforms outside the court system, and newly established Internet courts. Through online judicial means, disputes are resolved online through online litigation and non-litigation. As the last line of defense to maintain fairness and justice, justice plays an important role in the entire dispute resolution system. And online justice plays a leading and safeguarding role in online dispute resolution. For example, the platform of people’s mediation set up by the Supreme People’s Court has already stationed 1,260 courts, 2,504 professional mediation organizations, and 18,366 professional mediators and altogether accomplished 61,748 mediation cases. With the implementation of the wisdom court, wisdom courts in various regions will also become the subject of ODR. In addition to the court’s own online dispute resolution platform, it is necessary to realize the interconnection of the court ports to strengthen the sharing of information resources.


The third is the subject of diversified online dispute resolution. The primary task of diversified online dispute resolution subjects is to examine the access qualifications of various subjects. Taking the mediator as an example, it is difficult for some senior mediators to accept the processing operation of mediation applications on the online dispute resolution platform and then there is also a serious shortage of professional mediators. Senior mediators have rich experience, but have difficulty adapting to the needs of mediation work under the new Internet situation, so it is necessary for them to be provided with unified learning and training. At the same time, it is necessary to strengthen personnel guidance and improve subjects of online mediation. In order to enhance the credibility of the ODR, it is necessary to establish through legislation of the forms of online dispute resolution and the legal status of the subject of online dispute resolution.


2. Mechanism Responsibilities. — In the new era of rapid development of the Internet, network information technology is becoming more and more developed. The constantly updated artificial intelligence technology provides technical support for online dispute resolution modes. In the field of dispute resolution, network information technology as the ‘fourth party’ has given birth to new dispute resolution modes, platforms and mechanisms. In order to resolve online disputes, the ODR, as a new dispute resolution mechanism, should be masses-oriented and improve the quality of dispute resolution. The standards for quality online dispute resolution are high efficiency, convenience and low cost. Based on this, the author believes that the responsibility of an ODR needs to be determined from the following aspects.


The first is to realize interoperability and coordination with judicial litigation. The internal construction of an ODR is to fully respect the autonomy of the parties, give the parties the right to choose the dispute resolution mode on their own and on this basis, resolve disputes efficiently under the Internet environment. In this sense, an ODR has the social value of rule of law on the basis of its substantive and procedural values. Judicial litigation has the incomparable advantage over online dispute resolution in terms of compulsory enforcement. However, after an online dispute resolution platform is promoted and applied, judicial litigation will not be the preferred way of dispute resolution for the parties and the parties may choose online dispute resolution. Therefore, based on this reality, the realization of interoperability and coordination with judicial litigation not only provides an efficient way of dispute resolution, but it is also conducive to promoting the development of ODR.


The second is to provide efficient and convenient online services. Adhering to the people-oriented concept, online dispute resolution modes of high efficiency, convenience and low cost are most in line with the needs of the people. Since the Internet has the characteristics of transcending time and space, the parties to the dispute can freely select a convenient time to settle the dispute online, which greatly facilitates the parties. Compared with a traditional offline dispute resolution mechanism, an ODR mainly relies on intelligent network technology to reduce the cost of dispute resolution, so that the parties to the dispute do not need to visit the court personally and save various expenses. Since an ODR operates by providing online services, the parties to a dispute do not need face-to-face communication. Even if they are far apart and in different countries, they can also communicate and negotiate through video conference or mail transmission. It is suggested that the modernization of social governance should be promoted to realize the dispute resolution goal of ‘no more than one visit, better no need to visit’.


The third is to integrate social dispute resolution resources. China’s  current ODR has not yet integrated the social dispute resolution resources, which has led to the situation that various resources are fighting separately. In the absence of integration, the existing official resources and non-official resources, individual resources and group organization resources, traditional resources and new resources are conducive neither to the sound development of the mechanism, nor to the transformation of traditional dispute resolution modes to modern online dispute resolution modes. Firstly, financial subsidies should be provided. Since most of the existing online dispute resolution platforms in China have a public welfare nature, without the support of state financial subsidies, it is very likely that the platforms will suspend operations for lack of funds after running for a period of time, which makes it impossible for the platform to sustain development. To provide state subsidies for online dispute resolution platforms with public welfare nature is conducive to promoting the healthy development of ODRs. Secondly, human resources should be integrated. We should introduce and train professional personnel with both information technology and legal knowledge. At the same time, we should recruit professionals of ODRs at home and abroad to join the teaching team to train multi-skill professionals who are proficient in both Internet technology and law and mediation. Finally, litigation resources and mediation resources should be coordinated. We should make full use of social forces and advantages, and actively exert all mediation forces, to strive to resolve disputes and reduce the pressure of the court handling cases.


Based on this, we should screen, divert, and effectively integrate all social resources, avoid wasting resources, pool new core resources for dispute resolution, and promote the integration of social core resources, thus eventually constructing an online dispute resolution system with Chinese characteristics and achieving the ultimate goal of informationization promoting judicial reform.


3. Mechanism Operation. — With regard to the question of whether an ODR can exist for a long time, the author believes that if the Internet and e-commerce can exist for a long time, then an ODR can exist for a long time. The reasons are as follows: Through the development of Internet technology, an ODR is promoted to operate well, and the judicial credibility is gradually delegated to social organizations, so that the social dispute resolution subjects can assume the responsibility of online dispute resolution and the dispute resolution concept of social mediation first, court litigation last can be cultivated. At the same time, the ODR adapts to the current development trend of the Internet. As a result, social disputes are efficiently and inexpensively resolved, which greatly alleviates the pressure of the court characterized by many cases but insufficient staff.


For the operation of the mechanism, a complete set of online service processes needs to be developed and individualized resolutions should be formulated according to different needs to meet the diverse needs of dispute resolution. Innovations can be made in litigation service processes, so as to achieve paperless and networked dispute resolution services and promote online operations of various litigation matters. In order to promote the operation of the ODR, artificial intelligence, big data and other technologies should also be applied to the dispute diversion of online services, which relies on the analysis and prediction abilities of big data to realize the diversion of disputes data. By applying Internet information technology to the ODR, a comprehensive, efficient and convenient integrated online dispute resolution platform can be constructed to integrate various dispute resolution resources, improve the efficiency of dispute resolution, and through the Internet provide diversified dispute resolution services for the people.


B. Improving the Construction of an Integrated Online Dispute Resolution Platform


1. Constructing an Integrated Online Dispute Resolution Platform. — There are still some deficiencies in the rules and procedures of China’s online dispute resolution platform. In order to solve the problems existing in the current ODR more effectively, it is necessary for the state to participate in the construction of an integrated online dispute resolution platform with credibility and professionalism, which integrates multiple online dispute resolution modes into one platform and formulate unified online dispute resolution rules to improve the platform’s supervision mechanism. It is also necessary for the state to assist the national courts of four levels in coordinating and integrating various resources and in pooling national mediation resources, so as to achieve nationwide matching and docking of mediation resources and mediation needs through Internet standard services. In addition, online dispute resolution and ‘wisdom court’ construction should be deeply integrated to build an all-round and three-dimensional online dispute resolution platform so as to promote the activation and integration of various dispute resolution mechanisms. The establishment of an integrated online dispute resolution platform mainly relies on the internal online platforms and related judicial resources of the courts, but different online dispute resolution subjects should identify their respective responsibilities, use the platform as a converter of dispute resolution, integrate social core resources, and effectively link up with the ODR so as to realize the complementary advantages of the traditional dispute resolution mechanism and the ODR.


2. Establishing a Unified Database. — After all disputes are carefully divided into different categories, corresponding databases, including common question-and-answer database, case reference database and law and regulation database, are established accordingly. The accuracy and quality of online dispute resolution services essentially depends on the quality and quantity of the underlying database. The construction of case reference database and law and regulation database is not simply to collect and import the existing judgments from China Judgments Online Official Website, but also to screen the required reference cases and legal resources from the guiding cases issued by the Supreme People’s Court, the typical cases issued by the high courts and relevant textbooks, collections of laws and regulations, etc. published and compiled by practical and theoretical circles. The database is for the platform to provide better services; therefore, the establishment of a unified database should highlight the concept of people-orientation to ensure that the parties can use it easily and quickly.


3. Strengthening Promotion and Publicity. — In order to promote the operation of the ODR, it is necessary to strengthen the promotion and publicity of the integrated online dispute resolution platform through media to enhance the people’s awareness of online dispute resolution. At present, online dispute resolution work has been carried out in various places. Although a certain degree of publicity has been made, its coverage is not wide enough. In order to popularize the related knowledge of online dispute resolution, we should make full use of the media, such as radio, television, network, etc., to promote and publicize the application of the integrated online dispute resolution platform, so as to make the masses and various social groups fully aware of the social governance effect and specific advantages of the ODR, thus guiding the people to choose online dispute resolution and form the new habit of using online dispute resolution.


C. External Countermeasures for Constructing an Online Dispute Resolution System


1. Perfecting the Legal Rules: Theoretical Support of Judicial Practice under the Network Background. — In order to build an online dispute resolution system under the new situation and create a legal environment conducive to the development of an ODR, China should keep pace with the times, improve efficiency, and explore mainly offline, supplemented by online, the formulation of professional and targeted related rules. When promoting legislation, it is necessary to clearly stipulate the establishment of the mechanism so as to maximize the effectiveness of the diversified dispute resolution mechanism. Specifically, it can be carried out from the following aspects:


First, stipulating the jurisdiction issues of the ODR in the law. Traditional justice usually applies the general jurisdiction principle of plaintiff accommodated to defendant, while the ODR, which relies on Internet technology to resolve disputes, breaks the rules of jurisdiction and can be used simply through the Internet, but this does not exclude the jurisdictional rules. In practice, due to convenience and high-speed of the Internet and the lack of clear regulations on jurisdictional issues, there has emerged a phenomenon that the number of cases beyond the scope of online dispute resolution has increased dramatically, which has caused a big imbalance between an increasing number of cases and professional staff shortage. In view of this phenomenon, under the premise of fully respecting the party’s autonomy and safeguarding litigation rights, the law should clearly stipulate the jurisdiction scope, jurisdiction system and other related issues of the ODR. The author believes that online dispute resolution can be optional for cases involving small amounts, clear facts, and sufficient evidence, while offline dispute resolution is still needed for cases involving large degree of difficulty, complex facts and insufficient evidence.


Second, establishing the legal status of an ODR. The legal status of an ODR should be established in the law to determine its legitimacy and effectiveness. As a useful supplement to the traditional dispute resolution mode, the ODR has a series of problems, such as case jurisdiction, identification of electronic evidence, mediation agreement effectiveness, network security, data sharing, etc., among which, the most difficult problem is to determine the legal status of the ODR. The reason why it is difficult to enforce the results of an online dispute resolution is that some countries do not fully recognize the legitimacy of an ODR, therefore, in order to ensure the enforcement of online dispute resolution results, the first thing is to determine the legal status of the mechanism in the law and recognize that the online dispute resolution platform has legal dispute resolution qualification, which is an important guarantee to promote the sound development of mechanism. Only when it wins the support among the people, can the standardized and unified the ODR better protect the legitimate right of the party, promote the stability of the social order, and improve the level of social modernization governance.


Third, developing an operating mechanism of ODRs in the law. Firstly, the operating mechanism of an online dispute resolution should be regulated from the legislative aspect, so as to clearly define the subject qualification, establishment requirements and legal effect of the online dispute resolution platform and online dispute resolution service institutions, and strictly control the phenomenon of repeated establishment of institutions and platforms; secondly, unified online dispute resolution procedures, including operating procedures and executing procedures, should be developed, so as to provide institutional guarantee for the parties to resolve disputes; finally, each institution that provides online dispute resolution services should be required to provide access links of online dispute resolution platforms, so as to achieve interconnection and interoperability and allow the parties to freely choose the way of dispute resolution. At the same time, it is conducive to strengthening the connection and cooperation between online dispute resolution platform and the institutions providing online dispute resolution services, and between the online dispute resolution platform and the court.


2. Strengthening Network Technology Support: An Important Measure for the Judiciary to Actively Adapt to the Internet. — The primary task of developing an online dispute resolution system in China is to provide network technology, which needs to be handled from the following perspectives:


First, providing the support of network technology is an external requirement of online dispute resolution. Online dispute resolution is conducted through the Internet, so the operation of the online dispute resolution platform must also rely on Internet technology. Online mediation, arbitration, litigation and so on all upload relevant information through the Internet. In the process, voice recognition and video call functions are also required, which are indispensable technologies for online dispute resolution. Using Internet technology to promote the development of dispute resolution business and to build an online dispute resolution platform meets the needs of the new era and provides high-quality dispute resolution services for the public.


Second, modern network technology is used to promote the development of the ODR. Chat tools, voice recognition, video equipment and other Internet information technologies are widely used to support the construction and improvement of platforms and make dispute resolution subjects cross-regional, which meets the people’s new requirements for efficient and convenient dispute resolution in the new era. Network technology is also used to achieve the data co-construction and sharing, and full coverage of information in the whole process of dispute resolution, ultimately establishing an integrated online dispute resolution platform in line with the law of justice and the trend of globalization.


Third, the protection of data and personal information is emphasized to improve the security of the online dispute resolution platform. Online dispute resolution uses the Internet to transmit information and data, which involves many personal information and data resources of the parties, so their protection affects the party’s trust in online dispute resolution. Therefore, in order to make the platform operate better, it is necessary to establish an encryption system according to security technical standards and build a comprehensive security program and virus defense system, thus ensuring the security of the online dispute resolution platform. The online dispute resolution platform should upgrade its own security defense system and update its security measures in a timely manner. Internet dispute resolution modes, which are characterized by sharing economy and O2O, will surely lead to the leapfrogging upgrade of dispute resolution modes in the future, thus leading to the upgrade and update of traditional dispute resolution modes.


3. Optimizing Supervision Mechanism: Institutional Guarantee for the Normal Operation of Network Social Governance System. — To strengthen the supervision, it is necessary not only to construct the network platform and internal supervision mechanism of dispute resolution institutions, but also to optimize the effective supervision of the government’s industrial and commercial administration departments on network service platforms and dispute resolution institutions. To further improve market access qualifications, the congenitally insufficient dispute resolution subjects will not be allowed to enter the market; the dispute resolution subjects who do not meet the statutory requirements will withdraw from the market following the procedures according to the law, so as to ensure the security and stability of the entire online dispute resolution system. By optimizing the supervision mechanism, the subject of liability will be further clarified, and the faulty dispute resolution subject should bear the corresponding legal responsibility.


For the supervision of online dispute resolution platforms and institutions providing online dispute resolution services, they can establish their own supervision mechanism, set up supervision departments and recruit experts and scholars from relevant disciplines to carry out supervision work, such as guiding the optimization of the platform’s online dispute resolution forms and putting forward countermeasures and suggestions for unreasonable parts, so as to ensure that the entire operation process of the ODR can be fully supervised. At the same time, the existence of supervision departments also sets up relief at the second level for dispute resolution. For the supervision of industrial and commercial administrative departments, adapting to the development trend of Internet in the new era, they should make use of big data, block chains and other modern information technologies to analyze the use of illegal data related to the network and collect evidence of illegal operations at the same time and improve the supervision and analysis capabilities of industrial and commercial departments, so as to guarantee the fairness and authority of dispute resolution. Relevant supervision departments should link up supervision mechanisms to ensure that disputes can be resolved in a timely manner through the online dispute resolution platform.


V. CONCLUSION


The Internet is a 21st Century medium, which has revolutionized many areas of life. It fulfills many functions and as a common source of information, a communication tool and a global trading platform, it has become the engines for introducing modern technology solutions into existing activity areas. With the rapid development of the Internet, the technological revolutions of big data, artificial intelligence, cloud computing and so on, represented by new Internet technologies, are surging, and various disputes are growing day by day, so the use of the Internet to resolve disputes will become the future development trend. Disputes will be resolved not just through traditional judicial litigation and alternative dispute resolution mechanisms, the ODR will gradually become the main mechanism for dispute resolution, which is also an inevitable trend of Internet development. The online dispute resolution platform is not only the internal platform of the court judicial system, but also interconnects the online dispute resolution platforms outside the court system with the internal online platform inside the court system so as to provide fast and fair mediation, arbitration and litigation services, which undoubtedly provides more optional forms of dispute resolution for moderate value cases.


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