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...
http://chineseinput.net/에서 pinyin(병음)방식으로 중국어를 변환할 수 있습니다.
변환된 중국어를 복사하여 사용하시면 됩니다.
https://www.riss.kr/link?id=A108254543
2022
English
KCI등재
학술저널
219-249(31쪽)
0
0
상세조회0
다운로드다국어 초록 (Multilingual Abstract)
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...
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”.
참고문헌 (Reference)
1 Chen Jinzhao, "The bitter love derived from the charismatic rule of law―Reflection on the thinking direction of the formal rule of law and the substantive rule of law" (5) : 2012
2 Hou Jian, "The Substantive Level of the Rule of Law, the Formal Level of the Rule of Law and China's Choice" (2) : 2004
3 Artur Kaufmann, "The Procedure of Legal Acquisition―A Rational Analysis" China University of Political Science and Law Press 2015
4 Lon L. Fuller, "The Morality of Law" Commercial Press 2005
5 Li Guilin, "Substantive Rule of Law: The Inevitable Choice of the Rule of Law" (7) : 2018
6 Zeng Yi, "Review and Prospect of Brain-inspired Intelligence Research" (1) : 2016
7 Zheng Yongliu, "Patterns of Legal Judgment Formation" (1) : 2004
8 Zhang Chao, "On the Justification and Limitation of “Same Judgment in Similar Cases”" (1) : 2015
9 Wang Zejian, "Legal Thinking and Civil Law Examples: The Basic Theoretical System of the Right of Claim" China University of Political Science and Law Press 2001
10 Zuo Weimin, "Legal Research Towards Big Data" (4) : 2018
1 Chen Jinzhao, "The bitter love derived from the charismatic rule of law―Reflection on the thinking direction of the formal rule of law and the substantive rule of law" (5) : 2012
2 Hou Jian, "The Substantive Level of the Rule of Law, the Formal Level of the Rule of Law and China's Choice" (2) : 2004
3 Artur Kaufmann, "The Procedure of Legal Acquisition―A Rational Analysis" China University of Political Science and Law Press 2015
4 Lon L. Fuller, "The Morality of Law" Commercial Press 2005
5 Li Guilin, "Substantive Rule of Law: The Inevitable Choice of the Rule of Law" (7) : 2018
6 Zeng Yi, "Review and Prospect of Brain-inspired Intelligence Research" (1) : 2016
7 Zheng Yongliu, "Patterns of Legal Judgment Formation" (1) : 2004
8 Zhang Chao, "On the Justification and Limitation of “Same Judgment in Similar Cases”" (1) : 2015
9 Wang Zejian, "Legal Thinking and Civil Law Examples: The Basic Theoretical System of the Right of Claim" China University of Political Science and Law Press 2001
10 Zuo Weimin, "Legal Research Towards Big Data" (4) : 2018
11 Kaufmann, "Legal Philosophy" Law Press 2011
12 Lei Lei, "Legal Methods, Legal Stability and the Rule of Law" (4) : 2015
13 Chippelius, "Legal Methodology" Law Press 2009
14 Bai Jianjun, "Legal Empirical Research Methods" Peking University Press 2014
15 Writing group, "Introduction to Xi Jinping Thought on the Rule of Law" Higher Education Press 2021
16 Zhang Qianfan, "Introduction to Constitutional Law: Principles and Applications" Law Press 2014
17 Chen Jinzhao, "Interpretation of “The Thinking of the Rule of Law and the Way of the Rule of Law”" (2) : 2013
18 Wang Chen'an, "How to seek common ground: The review and reconstruction of the process of embedding judges' testimony in similar case retrieval under the matrix paradigm――Taking 300 judges' questionnaires in a city as an analysis sample" 2020
19 Lei Lei, "From ‘visible justice’ to ‘speaking justice’: Interpretation and reflection based on the Supreme People's Court's ‘Guiding Opinions on Strengthening and Standardizing Judicial Documents’ Interpretation and Reasoning" (1) : 2019
20 Sui Jigang, "Co-evolution of Technology and Institutions: Theory and Case Studies" (7) : 2017
21 Kevin D. Ashley, "Artificial Intelligence and Legal Analysis - New Tools for Legal Practice in the Digital Age" Commercial Press 2020
중국의 ‘데이터 3법’ 제정과 개인정보 보호 2.0시대에 대한 의미 고찰