On The Influence Of Judicial Artificial Intelligence On Judicial Discretion And Its Countermeasures

Judge is the link between legal norms and specific facts.Because of the tension between legal norms and social reality,giving Judge certain discretion can better achieve fairness and justice.The discretionary activity of Judge is the specific process of exercising jurisdiction.In order to prevent Judge from harming judicial justice at will,it is necessary to regulate Judge's discretion.At present,China is in a critical period of reform,and it is more necessary to restrain the discretion of Judge carefully.In this regard,a new round of judicial reform in China attempts to assist and regulate judicial discretion by introducing artificial intelligence into the field of judicial adjudication.The current Judicial artificial intelligence system can summarize the collective Judge's trial experience in all kinds of cases through the study of all the adjudication documents,and make predictions on the basis of this to provide reference suggestions for Judge.This system also has the function of case-like push and deviation warning.These functions are conducive to the similar judgement in similar cases.Under the circumstances of the large number of cases and the small number of Judge,Judicial artificial intelligence is not only a favorable way to improve the efficiency of Judge's trials,reduce the pressure of Judge,and stabilize the quality of Judge's judgment.It is also a convenient technique for the court to control the judgment and to discriminate Judge's discretion.Although Judicial artificial intelligence can regulate the discretion of Judge to promote similar treatment in similar cases by achieving the "counter" effect of precedents,it is not a substitute for Judge to achieve individual justice through exercising judicial discretion.The intention and creativity of Judge is the core of the realization of judicial justice.The inability of Judicial artificial intelligence to carry out value judgment and small data processing makes it impossible to replace the subject position of Judge in judicial judgment.Judge and Judicial artificial intelligence are the relationship between referee subject and auxiliary tools.And the auxiliary role of Judicial artificial intelligence in dififerent cases is not exactly the same.When Judge exercises judicial discretion rationally on the basis of proper use of Judicial artificial intelligence,he can form a positive interaction with Judicial artificial intelligence and jointly promote the realization of judicial justice.But on the other hand,the introduction of artificial intelligence has brought new risks to judicial decisions.Since the intelligent system can directly push the case and output the referee's conclusion,if Judge relies on the technical intelligence,it may lead to the implicit substitution of the intelligent system to Judge,the negative influence of the algorithmic bias on the judicial justice,and the negative impact of the algorithm black box on the principle of open trial.It is true that the above risks are related to the technical defects of Judicial artificial intelligence,but the fundamental reason is Judge who is the subject of the judgment.These risks are still essentially caused by the irresponsible abuse of discretion by Judge.In the era of artificial intelligence,the rational use of intelligent systems to avoid technical dependence has become a new requirement for Judge to exercise discretion.In order to guarantee the positive interaction between Judge and Judicial artificial intelligence,when using this technique it is necessary to strengthen the control of technology,regulate the application of Judge to technology,and give the parties the right to know and appeal to supervise Judge and Judicial artificial intelligence.