Research On Criminal Evidence Collection Regulation In The Digital Age

The invention of the computer in the middle of the 20 th century completely changed the way of recording personal information,and the storage,retrieval,comparison and transmission of information became very convenient.With the continuous development of information and communication technology,information processing technology has also taken a qualitative leap.Although the popularity of advanced technology has facilitated people's daily lives,there is also a potential crisis of personal rights in the digital age,and the call for personal information protection has gradually increased.At present,China's private law and criminal substantive law scholars have conducted a series of in-depth studies on this subject,while the criminal procedural scholars' exploration in this field is relatively laggard.In fact,with the aid of advanced information technology,the interference of personal information rights and interest form investigating agencies have become increasingly obvious,and the expansion of public power behavior itself has led to the danger of personal rights,further aggravating inequality between the two parties.In contrast,the United States and European countries and regions have actively responded to the protection of information in the field of criminal procedure,and have incorporated personal information rights into the scope of constitutional protection.Investigating agencies must follow due process to obtain personal information to prevent abuse of public power.In this context,China should also face this problem squarely,by appropriately introducing internationalized personal information protection norms,and constructing corresponding evidence collection rules based on personal information rights and interests,and through procedural constraints to achieve the substantial purpose of protecting personal rights and interests.This thesis has three parts which are introduction,main body,and conclusion.The introduction includes the research background,current research circumstance and research ideas.The main body is divided into five chapters.It cuts through the contradiction between criminal evidence collection and personal information protection in the digital age.At last,the thesis focuses on the construction of criminal evidence collection procedures for the introduction of personal information protection norms in China;the conclusion summarizes the research this thesis had conducted,main conclusions,and possible future research directions.There are five chapters in the main body:Chapter 1: Conflict between Criminal Evidence Collection and Personal Information Protection in the Digital AgeThis chapter analyzes the challenges brought by the use of information technology in criminal investigation to the protection of personal information.First,start with advanced investigative technology,explain the representative information technology and functions used in current criminal evidence collection,and reveal the important role of personal information in investigation.Second,preliminary analyze changes in criminal investigation caused by information technology,including the collection of information that obscured the start time of criminal investigations,massive information exacerbated the uncertainty of the direction of criminal evidence,and the original investigative mold gradually turned to cooperation between government and the third part who controls large personal information,and there are certain variables in the third party's joint efforts to obtain evidence.Finally,think about the personal information protection challenges brought about by this change in criminal evidence collection,and point out the risks,including information collection,secondary use,fair processing,and information security.The public power to obtain personal information in the name of protecting the public interest is extremely expansive in itself and is worthy of rethinking from the perspective of protecting individual rights.Chapter 2: Exploration and Comparison of Personal Information Protection in Criminal Evidence Collection between the US and EuropeThis chapter systematically researches and compares the protection of personal information in criminal evidence collection in overseas.This article selects typical representatives of the decentralized and comprehensive personal information protection legal system,and details how the United States and Europe have responded to the personal information protection challenges brought by the use of criminal information technology in recent years.The United States puts personal information under the right of privacy,and judges the constitutionality of law enforcement agencies' access to information based on reasonable expectations of privacy;the EU regards the protection of personal information as an emerging basic right independent to the right of privacy,focusing on the adoption of norms to regulate information processing,empowering information subjects with autonomy rights,emphasizing the duties of information controllers,and focusing on independent supervisory agencies to build a system of personal information protection.Based on the development history,theoretical basis,legal norms,and typical cases,this article analyzes the differences,reasons and similarity between the protection modes of the two places.The ultimate purpose of comparative law research is to solve China's problems.Therefore,what this article focuses on is to analyze the beneficial attempts made in extraterritorial criminal evidence collection,and to summarize the elements that conform to the law of criminal justice and provide references for future reform in China.Chapter 3: Current Situation of Criminal Evidence Collection and Personal Information Protection in ChinaThis chapter observes the legislation and practice of protecting personal information in China's criminal evidence collection.First,the investigation agency's behavior of obtaining personal information is divided into direct collection and indirect acquisition.From these two perspectives,the existing norms and practices are sorted out,and the judging criteria of evidence ability of personal information,and the specific application in criminal cases;Secondly,comparing to the useful experience of both the United States and Europe in considering the public interest of combating crimes and the personal interest of information protection,this article focus on the current practice.Although existing legislation contains personal information protection factors,this article points out the current rules emphasis on the authenticity of electronic data,ignoring the importance of the information carried by the data to individual citizens,the legislation is not clear in defining the nature of the act of obtaining personal information,the obligation of third parties to assist in obtaining evidence,and the lack of information subjects' right of information and channels to the right relief,all of these leave room for the improvement of personal information protection in China's criminal evidence collection.Chapter 4: Adjustment of Personal Information Protection Regulations in the Context of Criminal Evidence CollectionThis chapter analyzes and envisages how to protect personal information in criminal evidence collection in China.First,the universality of information processing behaviors has led to the emergence of modern right.Personal information rights and interests have an independent value that is different from previous basic rights.From a worldwide perspective,the protection of personal information has become an international trend.The basic principles and elements of rights of personal information are recognized by more and more countries and regions.Secondly,we should be aware of the special nature of criminal evidence collection.Obtaining evidence is to maintain social security and national security,and it is secret and non-public.While front-line investigators face complex and changeable realities when obtaining evidence,they should enjoy a certain amount of discretion.These have determined that the personal information protection norms cannot be mechanically simple introduce in the field of criminal evidence collection;Finally,on the basis of clear position of personal information protection rights,this article focuses on reconciling the conflict of interest between criminal evidence collection and personal information protection,and makes appropriate adjustments to personal information protection norms based on the particularity of evidence collection.And put forward the idea of hierarchical protection based on the classification of personal information in criminal investigation.Chapter 5: Regulations on Evidence Collection Procedures for Introducing Personal Information Protection RegulationsThis chapter proposes a concrete plan for the construction of a procedure that takes into account the personal interest of protecting personal information in criminal evidence collection in China.This article advocates the introduction of appropriately adjusted personal information protection norms in criminal procedure as the basis for establishing due process.First,compare the two legislative models for balancing criminal evidence collection and information protection extraterritorial.One is the personal information protection law as the main body,and special provisions are made on the collection and processing of information by investigating agencies.The other is the regulation on the criminal investigation in criminal procedure that incorporating provisions that reflect the principles and rules of personal information protection,and amendment model provide the possibility for the reform of China's criminal evidence collection procedures;second,the factors that must be considered in legislation and the limits of evidence collection,with emphasis on the application of the principle of limitation of purpose;finally,this article focuses on the hierarchical information protection in obtaining criminal evidence,that is,given the nature of the variety of information and the complex and flexible investigation,the act of obtaining personal information should not be applied unified standards,and there should be distinctions among the conditions of evidence collection according to the nature of information secrecy and the volume of information,and set different information protection specifications to restrict public power.This level of hierarchy is reflected in all aspects of pre-approval,protection during the event,and exclusion after the event.At last,the effectiveness of information protection is achieved through the regulation of the evidence collection process.